JB & Assocs., Inc. v. Neb. Cancer Coal.

• Decision Date: 09 August 2019
• Docket Number: No. S-18-719.,S-18-719.
• Citation: 932 N.W.2d 71,303 Neb. 855
• Court: Nebraska Supreme Court
• Parties: JB & ASSOCIATES, INC., a Nebraska corporation, et al., appellants, v. NEBRASKA CANCER COALITION et al., appellees.

303 Neb. 855

932 N.W.2d 71

JB & ASSOCIATES, INC., a Nebraska corporation, et al., appellants,

v.NEBRASKA CANCER COALITION et al., appellees.

No. S-18-719.

Supreme Court of Nebraska.

Filed August 9, 2019

Gene Summerlin, Lincoln, Brent A. Meyer, and Quinn R. Eaton, of Husch Blackwell, L.L.P., Omaha, for appellants.

John C. Aisenbrey and Robin K. Carlson, of Stinson, L.L.P., and Patrick R. Turner, of Dvorak Law Group, L.L.C., for appellees.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Funke, J. Appellants, JB & Associates, Inc., and several other tanning salons, filed an appeal of the district court’s order dismissing their claims of defamation and product disparagement under Nebraska’s Uniform Deceptive Trade Practices Act (UDTPA).¹ Appellants challenge the court’s determination that the UDTPA requires reference to a specific product of a claimant. Appellants further contend the court failed to consider the facts in the light most favorable to their claims and erred in finding there was no genuine dispute of material fact in determining appellees' statements were not disparaging to appellants' businesses, products, or services and were not defamatorily "of and concerning" appellants. For the reasons set forth herein, we affirm.

BACKGROUND

Appellants are tanning salons that, from 2015 to 2017, allegedly accounted for between 68 to 71 percent of the known tanning salons in the Omaha and Lincoln, Nebraska, markets and approximately 14 to 18 percent of all the entities in Nebraska that provide indoor tanning services.

Appellees engage in activities related to cancer education and prevention. In 2014, appellee Nebraska Cancer Coalition (NCC), led by Drs. Alan G. Thorson and David J. Watts, started a campaign named "The Bed is Dead" to educate the public on the dangers of indoor tanning. NCC maintains for this campaign the website "www.thebedisdead.org." When the website went live in March 2014, the following statements were included on its "LEARN THE FACTS ABOUT TANNING" page:

Statement 1: "Tanning Causes More Cancers than Cigarettes[.]"

Statement 2: "Young women are hit hardest. New cases of malignant melanoma have soared 8-FOLD in young women since 1970, TWICE AS FAST as in young men!"

Statement 3: "Tanning before age 35 raises your risk of melanoma by nearly 60%."

Statement 4: "Tanning beds have been proven to cause skin cancer."

Statement 5: "Your skin remembers EACH tanning session. Just one indoor tanning session increases your risk of melanoma by 20% and each additional use during the same year boosts risk by another 2%."

Statement 6: "Malignant melanoma is now the most common cancer in young adults aged 25-29 years, second most common in young women aged 30-34 years and in teenagers."

Statement 7: "Ultraviolet radiation and UV tanning devices are rated by the Food and Drug Administration (FDA) and the World Health Organization (WHO), among other agencies, as carcinogenic to humans (type-1 carcinogens), in the highest risk category alongside arsenic, radon, tobacco, and asbestos."

Statement 8: "One person dies of melanoma every hour in the U.S."

Statement 9: "Malignant melanoma is increasing more rapidly than any other cancer."

Statement 10: "Tanning is addictive. One study produced withdrawal symptoms in frequent tanners with narcotic antagonists such as are used in emergency rooms. Studies find higher rates of alcohol, tobacco, and drug use in females that tan."

Statement 11: "Of melanoma cases among patients under 30 who had tanned indoors, 76 percent were attributable to tanning bed use in a recent well-designed and conducted study."

Statement 12: "Vitamin D is important, but exposure to UV more than about 10 minutes actually starts to break down the pre-vitamin D in the skin."

Statement 13: "There is no such thing as a ‘safe tan.’ Any color the skin develops is a direct result of DNA damage to the skin cells."

Additionally, under a page titled "FACTS," the website stated:

... Tanning facilities do not require a license to operate in Nebraska.

... In 2010, the U.S. Federal Trade Commission ordered the Indoor Tanning Association to cease false advertising claims: 1) that tanning is safe or healthy, 2) that tanning poses no danger, and 3) that tanning does not increase risk of skin cancer.

... Yet, a congressional investigative report two years later found:

... Tanning Salons market their product to teenagers.

... Nine out of ten salons DENIED KNOWN RISKS of indoor tanning.

Under a "TOOLKIT" page on the website, NCC also encouraged visitors to promote the page "at your organization or school."

NCC promoted the website in publications, social media, and advertisements. NCC also utilized dermatologist partners who visited Omaha schools and encouraged students to go to the website. In the other publications, NCC made the following additional statements to support the campaign:

Statement 14: "Evidence shows that exposure to artificial UV light before age 30 increases a person’s risk of melanoma by 75%."

Statement 15: "In a recent study, 76% of melanomas diagnosed in people aged 18-29 were caused by indoor tanning."

Statement 16: "Artificial sunlight — the kind found in tanning beds — ... carries a significantly higher risk of skin cancer."

Statement 17: "Indoor tanning is thought to cause 170,000 skin cancers annually."

Statement 18: "Worse, to get a fast tan, many tanning beds emit ultraviolet (UV) radiation that far exceeds UV in natural sunlight. Human evolution has not equipped even tanned skin to withstand such extreme UV exposures without injury."

Statement 19: "You may be thinking that just a few indoor tanning sessions won't hurt — that they can't really be that harmful. But science shows that indoor tanning is much more dangerous than previously assumed, especially for young people. A single indoor UV tanning exposure as a young person is linked to an alarming 34-59 percent increase in the risk of melanoma."

Statement 20: "Not only that, but the skin remembers every single tanning session. Melanoma risk increases almost 2 percent for each additional indoor tanning exposure in a given year."

Statement 21: "Melanoma is now the number one cancer in the U.S. among young adults aged 25-29 years, and is one of the most common cancers of teenagers."

Statement 22: "Young women make up 70 percent of the 1 million people who tan indoors every day in the United States. So it is not surprising that a Mayo Clinic study showed that in recent years melanoma has increased twice as fast in young women as in young men."

According to managing staff and employees of appellants, customers asked questions about appellants' facilities and the dangers of indoor training after visiting appellees' The Bed is Dead website.

In July 2015, based upon the statements from the website and supporting publications quoted above, appellants filed a complaint against appellees. This complaint alleged (1) violations of the UDTPA for deceptive trade practices and product disparagement and (2) defamation for making statements designed to destroy appellants' businesses, reputations, and livelihood.

Appellees submitted a motion for summary judgment in January 2018 seeking dismissal of these claims. In the motion, appellees argued that there were no genuine issues of material fact and that appellees were entitled to judgment as a matter of law.

Following a hearing, the district court granted appellees' motion and dismissed appellants' claims. In addressing the deceptive trade practices claim, the court noted the UDTPA states that "[a] person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, he or she ... [d]isparages the goods, services, or business of another by false or misleading representation of fact."² The court determined this language requires reference to a "specific product." Because the statements on which appellants' claims are based address the tanning bed industry as a whole instead of appellants' specific products, the court found appellants failed to offer evidence that NCC’s statements " ‘disparaged the goods, services, or business of another,’ " given the broad application of the statements and the generality with which the statements discuss the potential dangers of tanning.

On the defamation claim, the court listed the elements to prove defamation as (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. The court held that appellants failed to meet the first element and prove the statements were " ‘of [and] concerning’ " appellants. In so holding, the court referenced the Restatement (Second) of Torts³ and its explanation that a group libel claim can meet the "of and concerning" requirement if either the group is so small that the matter can reasonably be understood to refer to the member or the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member. Because the court found appellees' statements did not specifically reference appellants or their salons and instead were directed at tanning beds, tanning devices, and indoor tanning generally, the court determined appellants failed to show either option under the test for a group libel claim to meet the "of and concerning" requirement.

ASSIGNMENTS OF ERROR

Appellants assign, restated and reordered, that the district court erred in dismissing appellants' claims of defamation and product disparagement by (1) finding the evidence did not raise a genuine dispute of material fact on whether appellees' statements were "of and concerning" appellants for purposes of defamation; (2) holding that a UDTPA claim for deceptive trade practices and product disparagement requires a statement to reference a...