The decision reaches beyond competitor false advertising claims, with potentially significant implications for FDA, FTC, state consumer protection, and other regulatory enforcement.
Executive Summary
The Tenth Circuit's decision in KetoNatural Pet Foods, Inc. v. Hill's Pet Nutrition, Inc. may ultimately be remembered less for what it says about pet food than for what it says about hyperlinks.
For years, many companies operated under an informal assumption—sometimes referred to as the "two-click rule"—that they could avoid liability for third-party claims so long as those claims appeared on another website that consumers had to navigate to independently. The Tenth Circuit has substantially undermined that assumption. The court held that a company's own commercial speech may include third-party content that it intentionally incorporates through hyperlinks and curated references when those materials function as part of the company's promotional message.
Although the case arises under the Lanham Act, the reasoning has implications well beyond competitor litigation. Companies regulated by the FDA, FTC, state attorneys general, and consumer protection statutes should carefully evaluate not only what they say about their products, but also what they direct consumers to read.
Why This Decision Matters
The litigation involves competing pet food manufacturers, but the legal principle is much broader.
The court recognized that a company may not avoid liability under the Lanham Act simply because the challenged representation appears on another website reached via hyperlink. Where a business intentionally directs consumers to third-party content as part of its own marketing message, a court may conclude that the linked content is part of the company's commercial speech.
In practical terms, the decision significantly weakens what many marketing professionals have long viewed as the "two-click rule," i.e., the belief that the company cannot be held liable once a consumer leaves the company's website. The "two-click rule" was never a legal doctrine or formal FDA policy. It was a lawyer-created risk-management convention born from the need to translate Section 403B of the Federal Food, Drug, and Cosmetic Act—as added by DSHEA—into the digital world. The statute spoke only in the language of the physical marketplace, requiring literature to be kept "physically separate" from products, and said nothing about hyperlinks or the number of clicks between a product page and a scientific article. The theory was simple: the more clicks, the weaker the argument that FDA could treat the material as labeling or evidence of intended use. As commerce moved online, lawyers improvised "virtual distance" through exit notices, separate informational sites, and additional clicks. That logic eventually migrated beyond dietary supplements to food, cosmetics, medical devices—and, yes, pet food.
While the court did not expressly announce the demise of a "two-click rule," its reasoning makes it clear that hyperlinks are not automatically liability-free. Courts will instead examine whether the linked content functions as the company's commercial speech.
Critically, the court's reasoning draws a distinction between the third party's own speech and the company's use of that speech. The content on a third-party website may, standing alone, constitute protected expression—editorial commentary, opinion, or non-commercial speech. But when a company intentionally directs consumers to that content as part of its own promotional message by embedding hyperlinks on its own website, the speech is no longer evaluated from the third party's perspective. Instead, it is evaluated as part of the directing company's commercial speech. The third party's First Amendment protection does not transfer to the company that appropriates the content for commercial purposes.
Moreover, the court's reasoning is not cabined by the number of intervening clicks. Where a company constructs or curates a pathway directing consumers toward third-party content—whether through sequential links, embedded navigation, resource portals, or guided content journeys—a court applying KetoNatural's framework may conclude that the company has incorporated the destination content into its own promotional message regardless of how many intermediate steps separate the company's website from the challenged claims. The decision does not replace a "two-click rule" with a "three-click rule"—it rejects the entire premise that click distance is the relevant analytical framework.
That analytical shift has consequences that could extend well beyond Lanham Act competitor disputes.
Beyond the Lanham Act: Potential Regulatory Implications
Although KetoNatural Pet Foods, Inc. v. Hill's Pet Nutrition, Inc. involved a competitor false advertising action, its reasoning is likely to resonate in regulatory enforcement and consumer class action litigation.
Regulators have long examined the totality of a company's promotional communications when determining whether marketing claims violate the law. KetoNatural reinforces the proposition that companies cannot necessarily insulate themselves from liability simply by outsourcing substantive claims to third-party websites.
For FDA-regulated products, the implications may be particularly significant. If a company directs consumers to third-party materials stating that its product can diagnose, cure, mitigate, treat, or prevent disease, regulators may argue that the company has adopted those claims as part of its own promotional message. Depending on the facts, such conduct could support allegations that the company is marketing an unapproved new drug, promoting an unapproved intended use, or distributing misleading labeling or advertising.
Similarly, state consumer protection statutes—including California's Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA)—often focus on whether consumers are likely to be misled by the overall marketing message rather than by isolated statements viewed in artificial isolation. Consumer class action plaintiffs may likewise argue that linked third-party content should be considered part of the company's overall promotional campaign.
The FTC likewise evaluates advertising based on the net impression conveyed to reasonable consumers. A company's deliberate use of hyperlinks, embedded content, testimonials, or third-party educational materials may therefore receive increased scrutiny when those materials communicate claims that the company could not lawfully make directly.
Moreover, directing consumers to claims through hyperlinks does not insulate those claims from scrutiny for falsity. The KetoNatural court applied the establishment claim doctrine to hold that scientific claims are literally false if the underlying studies do not actually support the asserted conclusions. Companies that link to scientific or technical materials should ensure that those materials accurately represent the state of the evidence. Cherry-picking third-party sources or presenting claims out of context can create significant legal risk.
Accordingly, companies should no longer assume that placing claims "one click away" provides meaningful legal protection.
Practical Compliance Takeaways
KetoNatural suggests that companies should rethink how they evaluate digital marketing and online content.
Among other things, businesses should consider:
- Reviewing hyperlinks with the same rigor as claims appearing directly on company webpages
- Evaluating whether linked articles, white papers, videos, testimonials, blogs, or educational materials communicate product claims that could reasonably be attributed to the company
- Ensuring that scientific references and linked studies accurately reflect the conclusions of the underlying data, consistent with the establishment claim doctrine
- Reviewing disease claims contained in third-party materials before linking to or promoting them
- Reassessing influencer campaigns, educational portals, resource libraries, and curated content that may become part of the company's overall commercial message
- Recognizing that regulators and plaintiffs increasingly evaluate the totality of a company's promotional ecosystem—not merely the words appearing on a single webpage
Bottom Line
KetoNatural is about much more than pet food. It represents an important evolution in how courts view digital marketing.
The decision substantially undermines the long-standing assumption that a company can avoid responsibility for promotional claims simply because they appear on a third-party website reached through a hyperlink. Instead, courts may examine whether the company intentionally used those materials as part of its own commercial message.
For companies operating in FDA-regulated industries—and, more broadly, for any business engaged in digital marketing—the safest assumption is no longer that "if it's on someone else's website, it's someone else's problem." After KetoNatural, the more prudent question is whether a regulator, competitor, or consumer could plausibly argue that the linked content has become part of the company's own advertising.