Castrol Inc. v. Pennzoil Company and Pennzoil Products Company

OPINION OF THE COURT

ROSENN, Circuit Judge.

The primary issue raised by this appeal is whether one of this nation’s major oil companies engaged in deceptive advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a) (1988). The parties to this appeal further call upon this court to interpret the degree to which commercial speech is protected by the First Amendment to the United States Constitution.

Commercial advertising plays a dynamic role in the complex financial and industrial activities of our society, leading author Norman Douglas to go so far as to observe that “[y]ou can tell the ideals of a nation by *941its advertisements.”1 Because honesty and fair play are prominent arrows in America’s quiver of commercial and personal ideals, Congress enacted section 43(a) of the Lanham Act “to stop the kind of unfair competition that consists of lying about goods or services.” U-Haul Int’l, Inc. v. Jartran, Inc., 681 F.2d 1159, 1162 (9th Cir.1982). Although “[cjomparative advertising, when truthful and nondecep-tive, is a source of important information to consumers and assists them in making rational purchase decision,” Triangle Publications v. Knight-Ridder Newspapers, 626 F.2d 1171, 1176 (5th Cir.1980), the consumer called upon to discern the true from the false requires a fair statement of what is true and false.

The plaintiff-appellee in this case, Castrol Inc. (Castrol), a major motor oil manufacturer and distributor of its products, sued in the United States District Court for the District of New Jersey, alleging that Pennzoil Company and Pennzoil Products Company (Pennzoil) advertised its motor oil in violation of section 43(a) of the Lanham Act2 when it claimed that its product “outperforms any leading motor oil against viscosity breakdown.” Additionally, Castrol challenged Pennzoil’s related secondary claim that Pennzoil’s motor oil provides “longer engine life and better engine protection.” After a bench trial on the merits, the district court held that Pennzoil’s advertisements contained claims of superiority which were “literally false.”

Consequently, the court permanently enjoined Pennzoil from “broadcasting, publishing, or disseminating, in any form or in any medium,” the challenged advertisements or any “revised or reformulated versions” thereof. This injunction was superseded by a more narrowly tailored Amended Order and Final Judgment, prohibiting only “revised or reformulated false or deceptive versions of the commercials.” The district court denied Castrol’s request for money damages and attorney’s fees and retained jurisdiction for the purpose of enforcing or modifying its judgment. Pennzoil immediately appealed on the grounds that its advertisements did not contain false claims and that the permanent injunction issued by the district court infringed on its right to free speech as protected by the First Amendment.3 We affirm.

I. FACTS

The district court opinion thoroughly recites the material facts of this case, which are not in dispute. Castrol Inc. v. Pennzoil Co. & Pennzoil Prods. Co., 799 F.Supp. 424 (D.N.J.1992). We set forth only a distillation thereof essential to an understanding of our disposition of this appeal. Castrol’s suit stems from a Pennzoil advertising campaign of its motor oil consisting of print and television commercials. These commercials feature either various members of national race car glitterati, or Arnold Palmer, a professional golf luminary of national repute, asserting that Pennzoil motor oil outperforms any leading motor oil against viscosity breakdown. The court found that the advertisements also implied that Pennzoil’s products offered better protection against engine failure than any other leading motor oil.

Motor oils minimize metal-to-metal contact in an engine by providing an optimum protective film between moving parts. The oils are designed to provide sufficient resistance to flow to maintain the oil’s thickness *942and protective film across the wide range of temperatures and stress generated by high speed motor engines. The measure of a motor oil’s resistance to flow is called “viscosity.” Ideally, viscosity should remain at an adequate level under all types of stress when the oil flows between engine parts in operation, but stress may cause a “shearing” effect which breaks down the viscosity of the oil during engine use. Viscosity breakdown has both a mechanical and chemical effect, the first causing a physical thinning of the lubricant and the latter the formation of sludge, varnish, and deposits on the engine. Because it is critical to motor oil performance, viscosity is the basis on which motor oils are classified and marketed by a grading system known as “SAE J300.”

According to SAE J300, the viscosity of unused motor oils is measured by an industry-recognized laboratory test developed by the American Society for Testing and Materials (ASTM). The tests and specifications measure the breakdown in motor oil viscosity caused by the stress of shearing and high temperatures during engine use. The court found that the Committee of Common Market Automobile Constructors (CCMC) has established “the most demanding viscosity breakdown standards.” Cas-trol, 799 F.Supp. at 430. CCMC is an association of major European automobile manufacturers, including Mercedes-Benz, BMW, and Jaguar. CCMC motor oil specifications contain two viscosity breakdown requirements: (1) the Shear Stability or Stay-in-Grade test, and (2) the High Temperature/High Shear (HTHS) test.

The Stay-in-Grade Test requires that the subject motor oil, after being sheared, maintain a minimum kinematic viscosity level in order to remain within its SAE J300 grade. The Stay-in-Grade standard is a “pass/fail” standard, and it does not rank motor oils within each grade. The district court found that all Castrol and Pennzoil passenger car motor oils pass the SAE J300 standards for their specified grades. Castrol, 799 F.Supp. at 429. Both parties to the litigation have stipulated that Pennzoil does not outperform Castrol against the Stay-in-Grade viscosity breakdown standard.

The HTHS test is a more rigorous test, which measures an oil’s reduced viscosity during exposure to high temperatures and large shear forces generated by rapidly moving parts similar to the conditions in an operating engine. HTHS standards have been adopted by the Society of Automotive Engineers (SAE), the CCMC, General Motors, Chrysler, and Ford. By this standard’s measure, Pennzoil did not outperform Castrol in any way; rather, it was Castrol motor oils which proved superior.4

Pennzoil, however, does not rely on the aforementioned tests to lend credence to its claims of superiority with respect to viscosity breakdown and protection from engine wear. Rather, Pennzoil claimed superiority on the basis of research it conducted utilizing the ASTM D-3945 Test, promulgated by the American Society of Testing and Materials.

Pursuant to this test, motor oil is passed through a diesel injector nozzle at a shear rate that causes a reduction in the kinematic viscosity of the fluid under test. The reduction in kinematic viscosity is reported as a percent loss of the initial kinematic viscosity. These tests showed that Pennzoil motor oil suffered less viscosity loss percentage than Castrol motor oil. Pennzoil contends that percent viscosity loss is one method of measuring viscosity breakdown and therefore asserts that this test substantiates its advertised superiority claims.

The district court, however, found that the ASTM-3945 Test was not a true measure of viscosity breakdown; it therefore relied upon the Stay-in-Grade and the HTHS tests. These tests, along with others conducted by Castrol, led the trial court to find that Pennzoil’s claims of superiority for viscosity breakdown and engine protection were literally false. Pennzoil chal*943lenges these findings and argues also that the district court’s injunction infringes upon Pennzoil’s right to freedom of speech.

“We review the district court’s conclusions of law in plenary fashion, its factual findings under a clearly erroneous standard, and its decision to [grant or] deny an injunction on an abuse of discretion standard.” Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 226 (3d Cir.1990) (citations omitted).

II. THE VISCOSITY BREAKDOWN CLAIM

First, Pennzoil asserts that, absent any evidence of consumer confusion in this case, Castrol failed to meet its burden of proving literal falsity by the standard set forth in Sandoz, supra. Likewise, a substantial portion of the dissent is spent urging that Sandoz requires that we consider consumer evidence even in a case where there has been a finding of literal falsity. However, this argument ignores crucial differences between the case sub judice and Sandoz. In Sandoz, we sustained the trial court’s findings that the advertisements in question were not literally false and held, where the advertisements are not literally false, a plaintiff bears the burden of proving actual consumer deception. Sandoz, 902 F.2d at 228-29. The Sandoz trial court resorted to proof of consumer confusion only after finding that the challenged claims were not literally false. As that court stated:

Where the advertisements are not literally false, plaintiff bears the burden of proving actual deception by a preponderance of the evidence. Hence, it cannot obtain relief by arguing how consumers could react; it must show how consumers actually do react.

Id. (emphasis supplied) (citations omitted).

In the instant case, however, the trial court found that Pennzoil’s advertisements were literally false. Sandoz definitively holds that a plaintiff must prove either literal falsity or consumer confusion, but not both. Sandoz, 902 F.2d at 227; see also McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1549 (2d Cir.1991) (Where the advertisement is shown to be literally false, the court may enjoin it without reference to its impact on the consumer.).

Thus, there are two different theories of recovery for false advertising under section 43(a) of the Lanham Act: “(1) an advertisement may be false on its face; or (2) the advertisement may be literally true, but given the merchandising context, it nevertheless is likely to mislead and confuse consumers.” Johnson & Johnson v. GAC Int’l, Inc., 862 F.2d 975, 977 (2d Cir.1988) (Garth, J., sitting by designation).

When a merchandising statement or representation is literally or explicitly false, the court may grant relief without reference to the advertisement’s impact on the buying public. When the challenged advertisement is implicitly rather than explicitly false, its tendency to violate the Lanham Act by misleading, confusing or deceiving should be tested by public reaction.

Coca-Cola Co. v. Tropicana Prod., Inc., 690 F.2d 312, 317 (2d Cir.1982) (citations omitted).

Therefore, because the district court properly found that claims in this case were literally false, it did not err in ignoring Pennzoil’s superfluous evidence relating to the absence of consumer confusion. In addition, because the advertisement in Sandoz was not literally false, that case’s references to consumer confusion, read in context, are completely consistent with the majority’s disposition of this matter.

Second, Pennzoil argues that Cas-trol failed to sustain its burden of proving literal falsity because Castrol never offered affirmative proof to refute Pennzoil’s claims, but merely cast doubt upon Pennzoil’s research. See, e.g., Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 62 (2d Cir.1992) (“Where the defendant’s advertisement claims that its product is superior plaintiff must affirmatively prove defendant’s product equal or inferior.”).

Yet Pennzoil’s contention is meritless, as the trial record is replete with Castrol’s affirmative evidence proving the literal fal*944sity of Pennzoil’s claims. For example, between October 25, 1991, and February 26, 1992, the Castrol Technical Center conducted the CCMC, International Lubricant Standardization and Approval Committee, and Chrysler Stay-in-Grade Tests. Both Pennzoil and Castrol met the Stay-in-Grade requirements, thus refuting Pennzoil’s contention that it outperforms Castrol with respect to viscosity breakdown.

Between January 1, 1992, and March 25, 1992, the Castrol Technical Center conducted HTHS Tests, and all Castrol motor oils met the HTHS standard established by the CCMC, as well as all the other HTHS specifications. Pennzoil’s 5W-30 and 10W-30 motor oils, however, failed to meet this standard, although other Pennzoil motor oils passed this test. Therefore, this test also did not substantiate Pennzoil’s claims of superiority; on the contrary, it demonstrated Pennzoil motor oil’s inferiority in some respects to Castrol motor oil. Thus, according to the only two industry accepted tests for measuring viscosity breakdown, Pennzoil’s claims of superiority were literally false.

Castrol also presented expert testimony and field tests which affirmatively demonstrated that Pennzoil motor oil does not outperform Castrol motor oil with respect to viscosity breakdown. For example, the Southwest Research Institute conducted an automobile fleet test at Castrol’s request. Researchers placed Pennzoil motor oil inside a group of three automobiles, each of a different model, and then placed Castrol motor oil inside three cars identical to the first set. The researchers then drove these automobiles through various tests and compared the viscosity breakdown of the two motor oils. According to this test, Castrol motor oil outperformed Pennzoil’s product with respect to viscosity breakdown, therefore discrediting Pennzoil’s claims.

Moreover, the court found that Pennzoil failed to adequately refute Castrol’s affirmative evidence. For example, the fundament of Pennzoil’s claim of superior protection against viscosity breakdown was the results of its ASTM D-3945 Test. Cas-trol’s expert, Marvin F. Smith, Jr. (Smith), who was a member of the task force which developed the ASTM D-3945 Test method, testified that the ASTM D-3945 test renders inaccurate results with regard to viscosity breakdown.

Smith explained that the ASTM-3945 Test was developed for manufacturers to measure the quality of one batch of oil against the next batch of the same type of oil. This test was never intended to compare the viscosity breakdown of oils of different polymer classes, and the test cannot perform this function accurately. Pennzoil and Castrol are motor oils of different polymer classes, and thus this test's comparison of the two oils proves nothing relevant. Actually, the test does not measure viscosity breakdown at all; rather, it measures percentage of viscosity loss. As Trial Judge Wolin perceptively observed:

Pennzoil ignores the caveat embodied in the [ASTM D-3945] test as to the significance and use of ASTM D-3945. In § 4.2 it states “[T]hese test methods are not intended to predict viscosity loss in field service for different polymer classes or for different field equipment.”

Castrol Inc. v. Pennzoil Co. & Pennzoil Prods. Co., 799 F.Supp. 424, 438 (D.N.J.1992). Thus, it cannot be gainsaid that Castrol presented affirmative evidence to prove the literal falsity of Pennzoil’s claims and that Judge Wolin did not find Pennzoil’s evidence to rebut Castrol’s proof persuasive.

The dissent asserts, however, that a defendant need only establish a reasonable basis to support its claims to render the advertisement literally true. We disagree. Rather, the test for literal falsity is simpler; if a defendant’s claim is untrue, it must be deemed literally false.

In this case, Pennzoil made a claim of superiority, and when tested, it proved false. Hence, under this standard, the district court correctly found literal falsity. Therefore, Castrol sustained its burden of proof, especially given this court’s narrow scope of review:

If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of ap*945peals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.
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[Moreover,] when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.

Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).5

Pennzoil and the dissent assert that the district court declined to allow Pennzoil to rely on the ASTM-3945 Test to substantiate its claims solely because the test is not an industry standard. They argue, therefore, that the court erred because an advertised product’s failure to meet industry standards does not render the advertisement literally false. See ConAgra, Inc. v. Geo. A. Hormel & Co., 784 F.Supp. 700 (D.Neb.1992).

We do not disagree that a test which is not an industry standard can yield accurate results. However, the district court did not enjoin Pennzoil’s advertisements merely because the ASTM-3945 was not an industry standard test. It did so because it found that the ASTM-3945 Test did not measure viscosity breakdown at all. On the contrary, that test measured percent viscosity loss.6

III. THE ENGINE WEAR CLAIM

First, Pennzoil asserts that its claims regarding superior engine protection constitute common marketplace “puffery,” and thus do not violate the Lanham Act. Puffery is an exaggeration or overstatement expressed in broad, vague, and commendatory language.

Such sales talk, or puffing, as it is commonly called, is considered to be offered and understood as an expression of the seller’s opinion only, which is to be discounted as such by the buyer.... The “puffing” rule amounts to a seller’s privilege to lie his head off, so long as he says nothing specific.

W. Page Keeton, et al., Prosser and Kee-ton on the Law of Torts § 109, at 756-57 (5th ed. 1984). Puffery is distinguishable from misdescriptions or false representations of specific characteristics of a product. As such, it is not actionable. See Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1115 (D.N.J.1987).

The predicate for Pennzoil’s position— that its claims that its motor oil offered better protection against engine wear amounted to mere puffery — is that its advertisements included only general claims of superiority. See Nikkal Indus., Ltd. v. Salton, Inc., 735 F.Supp. 1227, 1234 n. 3 (S.D.N.Y.1990) (General claims that the product was “better” were mere puffery and not actionable as false advertising.); United States Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 926 (3d Cir.), (In the context of the advertising in the case, the defendant’s claim that it was the better health care plan was an innocuous kind of puffery.), cert. denied, 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33 (1990).7

*946Pennzoil’s claim of engine protection by contrast involves more than a mere generality. Here, the claim is both specific and measurable by comparative research. In fact, Pennzoil seeks to substantiate its claims of superiority by reference to testing. This distinguishes the present case from those cited by Pennzoil and defeats Pennzoil’s assertion that its claims constitute only puffery. See Gillette Co. v. Wilkinson Sword, Inc., No. 89 Civ. 3686 (KMW), slip op. at 42-43 (S.D.N.Y. Jan. 9, 1991) (performance claim which can be comparatively rated is not puffery); Toro Co. v. Textron, Inc., 499 F.Supp. 241, 249-53 & n. 23 (D.Del.1980) (claims concerning specific product attributes are not puffery.); In re Bristol-Myers Co., 102 F.T.C. 21, 321 (1983), (claims subject to measurement are not puffery), cert. denied, 469 U.S. 1189, 105 S.Ct. 960, 83 L.Ed.2d 966 (1985)

Pennzoil’s failure to specifically mention its competitors in the sentence promoting engine protection also does not render the statement puffery. First, the district court found that the statement compared Pennzoil to its major competitors by necessary implication. Pennzoil stated it is superior to the other brands in protecting against viscosity breakdown, noting that viscosity breakdown leads to engine problems. It left the consumer with the obvious conclusion that Pennzoil is superior to the other leading brands in protection against engine problems. Therefore, Pennzoil did, by implication, compare its effectiveness against engine wear to that of its competitors, and the court’s finding did not constitute a rewriting of the commercials, as claimed by Pennzoil.8

Moreover, there need not be a direct comparison to a competitor for a statement to be actionable under the Lanham Act. See American Home Prods. Corp. v. Johnson & Johnson, 654 F.Supp. 568 (S.D.N.Y.1987) (holding that the claim that Tylenol gives unsurpassed relief is not puffery despite the lack of a direct comparison); Gillette, No. 89 Civ 3686 (KMW), slip op. at 42 (the claim “Smoothest, most comfortable shave” is not puffery). Under Pennzoil’s logic, as Castrol points out, the Ford Motor Company could claim that its Pinto model offers the best rear end protection as long as no competitor is specifically named. Such a result is impractical and illogical.

Second, Pennzoil asserts that the district court erred in holding that the claims relating to better engine protection were literally false by necessary implication. However, in assessing whether an advertisement is literally false, a court must analyze the message conveyed in full context. Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 735 F.Supp. 597, 600 (D.Del.1989), aff'd, 902 F.2d 222 (3d Cir.1990); see also Gillette, No. 89 Civ. 3686 (KMW), slip op. at 9 (“[Defendant’s] claim of 'six times smoother,’ or any use of the word ‘smoother’ by [Defendant] in the context of its advertisements for shaving products, necessarily implies that the shave itself is smoother.”) (emphasis in original); Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., No. 81 CIV 731 (CSH), 1982 WL 121559, *2 (S.D.N.Y. June 9, 1982) (“[I]n determining facial falsity the court must view the face of the statement in its entirety, rather than examining the eyes, nose, and mouth separately and in isolation from each other”); Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190, 1193-94 (S.D.N.Y.1987) (Representations made by “necessary implication” can constitute false advertising.).

For example, the following message appeared in the advertisement litigated in the Cuisinarts case:

Robot-Coupe: 21
Cuisinart: 0
When all 21 of the three-star restaurants in France’s Michelin Guide choose the same professional model food processor, somebody knows the score—shouldn’t you?

Cuisinarts, 1982 WL 121559, *2. The court held this advertisement to be literally false, opining:

The basic point is that the ad states, by necessary implication, that Robot-Coupe and Cuisinarts both build professional *947model food processors, and that French restaurateurs, presented with two existing alternatives, chose the Robot-Coupe model over the Cuisinarts model by the score of 21 to 0. I appreciate that the ad does not make that statement in haec verba. That is not necessary.

Id.

In like fashion, Pennzoil’s advertisements claim that viscosity breakdown leads to engine failure. Pennzoil then claims, albeit falsely, that it outperforms any leading motor oil against viscosity breakdown. The implication is that Pennzoil outperforms the other leading brands with respect to protecting against engine failure, because it outperforms them in protecting against viscosity breakdown, the cause of engine failure. Moreover, Pennzoil’s Executive Vice President of Marketing, William Welcher, conceded in his deposition that this advertisement conveys the message that a consumer who selects a motor oil other than Pennzoil runs an enhanced risk of engine failure.

Nonetheless, the dissent charges the district court with substituting its judgment of the advertisement’s meaning for that of the consumers and further argues that the court’s reaction “is at best not determinative and at worst irrelevant.” American Brands, Inc. v. R.J. Reynolds Tobacco Co., 413 F.Supp. 1352, 1357 (S.D.N.Y.1976); see also Sandoz, 902 F.2d at 229 (“A Lanham Act plaintiff cannot obtain relief by arguing how consumers could react; it must show how consumers actually do react.”). The dissent dismisses the above cited cases which support the necessary implication analysis with the conclusory statement that “[tjhese cases clearly dealt with false representations of fact, not allegedly false implications of a possibly invalid, but scientifically accurate, test.” Dissent at 958.

First, as we discuss, the ASTM-3945 Test is not a scientifically accurate test for the purpose for which Pennzoil attempts to utilize it; we repeat it simply does not measure viscosity breakdown.

Second, this ease also deals with a representation of fact: whether one oil outperforms another. That is no different than whether one razor gives a smoother shave than its competitor, or any of the other cases cited in the majority opinion.

Despite the cases that we cite above in which courts interpret the meaning of an advertisement without reference to consumer evidence, the dissent baldly asserts that consumer evidence is necessary to interpret the meaning of an advertisement.

However, R.J. Reynolds and Sandoz involved advertisements which were found not to be literally false. See, e.g., R.J. Reynolds, 413 F.Supp. at 1357. In R.J. Reynolds, the court stated that it was asked to determine whether a statement acknowledged to be literally true and grammatically correct nevertheless had a tendency to mislead, confuse, or deceive.

Nor, in reaching that conclusion [of literal falsity], do I tread upon forbidden judicial territory. To use Judge Lasker’s phrase ... “the court’s reaction is at best not determinative and at worst irrelevant” only in cases where the issue is “whether a statement acknowledged to be literally true and grammatically correct nevertheless has a tendency to mislead, confuse or deceive.” Consumer reaction is determinative where an advertisement is ambiguous and, hence, only potentially misleading. In the ease at bar, the statement conveyed by the ad is unambiguous.

Cuisinarts, 1982 WL 121559, *2 (citations omitted); see also McNeil, 938 F.2d at 1549 (where an advertisement is shown to be literally false, the court may enjoin it without reference to consumer confusion). As in Cuisinarts, the district court here found that Pennzoil’s advertisements had an unambiguous meaning by necessary implication in their assertions that Pennzoil motor oil protects against engine failure better than its major competitors’ motor oils.9

*948Moreover, Castrol presented copious affirmative evidence to prove that Pennzoil’s claim to superior protection from engine failure is false. For example, pursuant to evidence introduced by Castrol, the district court found the testimony of Pennzoil’s expert witnesses, Dr. Hault and Dr. Spikes, speculative and unconvincing. The trial court also found Pennzoil’s reliance on the ASTM D-3945 Test to be misplaced. Qualified experts testified that percent viscosity loss, as measured by ASTM D-3945, is irrelevant to engine protection. It is the level of viscosity that the engine experiences in operation, not the percentage loss, that is significant to engine performance. Also, the ASTM D-3945 Test measures viscosity loss in terms of low shear viscosity, while the industry consensus teaches that high temperature and high shear conditions most authentically emulate actual engine conditions.

Also, Pennzoil’s Vice President of Product Support, Donald M. Johnson, candidly conceded that car owners who utilize Cas-trol motor oil do not run an enhanced risk of engine failure. In addition, Pennzoil’s director of research, James Newsom, testified that under normal operating conditions, consumers would not experience engine wear whether they chose Castrol or Pennzoil. Furthermore, under the industry established test for engine wear protection, both Castrol and Pennzoil met the highest performance requirements of the American Petroleum Institute.

Therefore, there was ample evidence adduced at trial to prove that Pennzoil’s claims of superior protection against engine wear were literally false, and thus the district court’s finding was not clearly erroneous. See Anderson, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12 (the appellate court should not disturb the trial judge’s findings regarding credibility of witnesses).

IV. THE FIRST AMENDMENT CONCERNS

Pennzoil also expansively contends that “[i]t is beyond dispute that the district court’s order constitutes a plain restraint on Pennzoil’s constitutional right to commercial free speech” as recognized by this court in United States Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 937 (3d Cir.), cert. denied, 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33 (1990). Pennzoil urges that if its motor oil improves in the future and thereby provides better protection from viscosity breakdown than does Castrol motor oil, Pennzoil would nonetheless be restrained from advertising this truism.

The Supreme Court has held that commercial speech is within the ambit of First Amendment protection. See, e.g., Friedman v. Rogers, 440 U.S. 1, 9, 99 S.Ct. 887, 894, 59 L.Ed.2d 100 (1979); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763, 96 S.Ct. 1817, 1826, 48 L.Ed.2d 346 (1976) (Society and consumers both have a strong interest “in the free flow of commercial information.”).

Paragraph (c) of the permanent injunction granted by the district court prohibits Pennzoil from:

(c) broadcasting, publishing or disseminating, in any form or medium, any commercial or advertisement that claims, directly or by clear implication that:
(i) Pennzoil motor oil outperforms any leading motor oil against viscosity breakdown;
(ii) Pennzoil motor oil gives the most protection against viscosity breakdown of any leading motor oil;
*949(iii) Pennzoil motor oil provides better protection against engine failure than any leading motor oil;
(iv) Pennzoil motor oil provides better protection against engine wear than any leading motor oil; or
(v) Pennzoil motor oil provides longer engine life or greater engine durability than any other leading motor oil.

Castrol Inc. v. Pennzoil Co. & Pennzoil Prods. Co., 799 F.Supp. 424, 441 (D.N.J.1992).

In essence, the district court has enjoined Pennzoil only from broadcasting, publishing, or disseminating the very statements which the court found to be literally false. Pennzoil argues that this is a prior restraint, in contravention of the First Amendment of the United States Constitution. At this moment, however, these claims are false, and it is well settled that false commercial speech is not protected by the First Amendment and may be banned entirely. Bates v. State Bar of Ariz., 433 U.S. 350, 383, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977). Moreover, the prior restraint doctrine does not apply in this case because there has been “an adequate determination that [the expression] is unprotected by the First Amendment.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 2561, 37 L.Ed.2d 669 (1973). The injunction is also not overbroad because it only reaches the specific claims that the district court found to be literally false. If, in the future, Pennzoil should improve its motor oil to surpass Castrol for viscosity breakdown, Pennzoil can at that time apply for a modification of the present injunction. See F.T.C. v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 44 (D.C.Cir.1985).

The Second Circuit rejected a similar argument regarding a preliminary injunction, stating:

Any time a court issues a preliminary injunction there is some chance that, after the issuance of the order but prior to a full adjudication on the merits, changes in the operative facts will undercut the court’s rationale. We will not, however, require the district court to draft a technical and narrow injunction to address the possibility of additional tests which are, at this time, purely hypothetical. If tests supporting its claim do come to light, [Appellant] may move to modify or dissolve the injunction.

Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 66 (2d Cir.1992); accord Flavor Corp. of Am. v. Kemin Indus., Inc., 503 F.2d 729, 732 (8th Cir.1974); 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2961, at 604 (1973).

Although the dissent correctly points out that we should not supervise “all debate” in a given area, we have a statutory duty to supervise repetition of claims that have been found to be literally false.

We therefore hold that commercial speech that is false when uttered does not enjoy the protection of the First Amendment. . The district court thus committed no error in enjoining it.10

V. CONCLUSION

In summary, the trial court, in a carefully written and exhaustive opinion, found Pennzoil’s superiority claims to be literally false. These findings were based on Cas-trol’s copious affirmative evidence, which included expert testimony, laboratory testing, and field testing. The evidence proved that Pennzoil motor oil does not suffer less viscosity breakdown than Castrol; on the contrary, in that respect, Castrol motor oil is superior. Therefore, ample evidence adduced at trial supported the district court’s findings of fact.

Pennzoil’s claim that the district court unconstitutionally restrained commercial *950free speech is also without merit. The only way to insure that Pennzoil will not duplicate its literally false claims in the context of a different advertisement is to enjoin the specific claims. The district court’s retention of jurisdiction in the event its order needs modification facilitates adequate recourse if Pennzoil’s claims of superiority should in the future become meritorious.

Accordingly, the judgment of the district court will be affirmed. Costs taxed against the appellants.

. Norman Douglas, South Wind 63 (Scholarly Press, Inc. 1971) (1931).

. Section 43(a) of the Lanham Act provides in relevant part:

(a) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any ... false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable to a civil action by any person who believes that he or she is likely to be damaged by such act.

.The district court denied Pennzoil’s motion to stay the Amended Order and Final Judgment pending appeal. Subsequently, Pennzoil filed a motion with this court to stay the injunction pending appeal, or in the alternative, to expedite its appeal. This court granted Pennzoil’s latter motion to expedite the appeal, but denied the stay.

. Pennzoil’s 5W-30 and 10W-30 oils did not pass this standard but all of Castrol oils succeeded.

. Moreover, Pennzoil failed to meet even the dissent’s liberal burden of proving literal truth in this case. The dissent suggests that a defendant need only establish a reasonable basis to support its claims to render the advertisement literally true. However, the ASTM-3945 Test is not a credible test upon which Pennzoil could reasonably rely for its advertisements; it simply does not measure viscosity breakdown.

. The dissent suggests that we have taken an approach that abandons “materiality” and presumes injury from "even the most innocuous of false claims.” Dissent at 954-55. Pennzoil, however, argued that its claims were literally true. Pennzoil never argued that the claims were "immaterial” in the sense of being false but innocuous. Thus, the question of materiality is not before us, and we have simply not addressed the issue.

.The Blue Cross decision has been called into question by many courts, which have declined to follow its result.

. The district court's necessary implication finding is discussed in detail in this section, infra.

. We address the dissent's quotation from a Second Circuit case which states it is "well established that the truth or falsity of the advertisement usually should be tested by the reactions of the public.” Dissent at 954 (quoting American Home Prods., 577 F.2d at 165.

However, that court continues:

*948Deceptive advertising or merchandising statements may be judged in various ways. If a statement is actually false, relief can be granted on the court’s own findings without reference to the reaction of the buyer or consumer of the product.
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The subject matter here is different. We are dealing not with statements which are literally or grammatically untrue.... Rather, we are asked to determine whether a statement acknowledged to be literally true and grammatically correct nevertheless has a tendency to mislead, confuse or deceive. As to such a proposition "the public’s reaction to [the] advertisement will be the starting point in any discussion.

Id. (emphasis in original) (citations omitted).

. The dissent contends that the district court’s injunction was overbroad. Rather than countering all of the analysis discussed above, the dissent focuses on a distinction between one of the cases cited and the present case: that the former involved a preliminary injunction and the later involves a permanent injunction. This is a distinction that appears inconsequential, and, moreover, the dissent disregards the numerous citations in the text of this opinion which did involve permanent injunctions.