The FTC may use two theories to prove an advertisement is deceptive or misleading: (1) the "falsity" theory and (2) the "reasonable basis" theory. Pantron, 33 F.3d at 1096; F.T.C. v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Under the falsity theory, the FTC has the burden of proving that the express or implied claim in the advertisement is false.

In order to prove that the cancer prevention and treatment claim made by Natural Solution is likely to deceive or mislead, Plaintiff must demonstrate either that "the express or implied message conveyed by the ad is false" or that "the advertiser lacked a reasonable basis for asserting that the message was true." See In re: Thompson Med. Co., Inc., 104 F.T.C. 648, 818-19 (1984); see also Pantron, 33 F.3d at 1096; FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. III. 1998). The "reasonable basis" test is an objective standard.U.S. Sales Corp., 785 F. Supp. at 748.

Id. (quoting F.T.C. v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998)).

A plaintiff can “show that an advertisement is deceptive either by proving its falsity or by showing that its proponent lacked a reasonable basis for asserting its truth.” F.T.C. v. Sabal , 32 F.Supp.2d 1004, 1007 (N.D.Ill.1998) (discussing false advertising claim brought by the FTC pursuant to the Federal Trade Commission Act (“FTCA”), 15 U.S.C. § 45(a) );see alsoBASF Corp. v. Old World Trading Co. , 41 F.3d 1081, 1091 (7th Cir.1994) (Lanham Act) (plaintiff must “offer affirmative proof that the advertisement is false,” or, “[i]f the challenged advertisement makes implicit or explicit references to tests, the plaintiff may satisfy its burden by showing that those tests do not prove the proposition”).

"Because the statute does not require an intent to deceive, the subjective good faith of the advertiser is not a valid defense to an enforcement action brought under Section 5(a)." FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998); FTC v. World Travel Vacation Brokers, 861 F.2d 1020, 1029 (7th Cir. 1988); Feil, 285 F.2d at 896 ("Whether good or bad faith exists is not material, if the Commission finds that there is likelihood to deceive."). 546.

The FTC may use two theories to prove that an advertisement is deceptive or misleading: (1) the "falsity" theory and (2) the "reasonable basis" theory. FTC v. QT, Inc., 448 F. Supp 2d 908, 958-959 (N.D. Ill. 2006) (citing FTC v. Pantron I Corp., 33 F.3d 1088, 1096 (9th Cir. 1994); FTC v. Sabal, 32 F.Supp.2d 1004, 1007 (N.D. Ill. 1998)). Under the falsity theory, the FTC has the burden of proving that the express or implied claim in the advertisement is false. Id. at 959 (citing Pantron, 33 F.3d at 1096).

The FTC may use two theories to prove that an advertisement is deceptive or misleading: (1) the "falsity" theory and (2) the "reasonable basis" theory. FTC v. QT, Inc., 448 F. Supp 2d 908, 958-959 (N.D. Ill. 2006) (citing FTC v. Pantron I Corp., 33 F.3d 1088, 1096 (9th Cir. 1994); FTC v. Sabal, 32 F.Supp.2d 1004, 1007 (N.D. Ill. 1998)). Under the falsity theory, the FTC has the burden of proving that the express or implied claim in the advertisement is false. Id. at 959 (citing Pantron, 33 F.3d at 1096).

A misrepresentation is material if it contains information that is important to consumers and is likely to affect their decision about whether to purchase a product. FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). "In order to establish that an act or practice is deceptive, the FTC must establish that the representations, omissions, or practices likely would mislead consumers, acting reasonably, to their detriment." FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988).

See Kraft, Inc. v. FTC, 970 F.2d 311, 314 (7th Cir. 1992); FTC v. Pantron I Corp., 33 F.3d 1088, 1096 (9th Cir. 1994); Thompson Medical Co. v. FTC, 791 F.2d 189, 193-94 (D.C. Cir. 1986). See also FTC v. Sabal, 32 F. Supp.2d 1004, 1007 (N.D. Ill. 1998). This court rules that the FTC has a better than negligible chance of success on the merits of its claim that the representations regarding the Premium Diet Patch ("diet patch") are deceptive. The Web sites and packaging of the diet patch made express claims that the diet patch would cause weight loss by suppressing appetite and boosting metabolism.

A representation, omission, or practice is considered "material" if it involves "`information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.'" Novartis Corp. v. FTC, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see alsoKraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); FTC v. Crescent Publ'g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission "is likely to mislead consumers," Verity Int'l, 443 F.3d at 63, as to information "important to consumers," Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service.