dissenting.
Because I think the majority has articulated and applied a standard, for determining “literal falsity” in a “non-establishment” Lanham Act claim for false advertising, that is inconsistent both with this Court’s prior rulings and with the statute’s primary focus, I respectfully dissent from the conclusions that the majority reaches in Parts II and - III.
At the outset, it is helpful to note that, in Lanham Act cases, this Court will “review the district court’s conclusions of law in plenary fashion” and “its factual findings under a clearly erroneous standard.” Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 225 (3d Cir.1990). Questions of the appropriate burdens of proof for parties in Lanham Act actions are questions of law to be decided under plenary review. See id. at 226-27; McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1548 (2d Cir.1991). Moreover, if the district court articulated incorrect legal criteria to guide its factual analysis, those legal criteria are subject to plenary review.
It is also important to examine exactly what the Lanham Act focuses upon and regulates. The relevant section of the Lan-ham Act, section 43(a), states:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(1) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(2) 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 in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a). This section of the Lanham Act “expressly establishes a private remedy for any violation thereunder.” Sandoz, 902 F.2d at 227. “The Lanham Act.is primarily intended to protect commercial interests. A competitor in a Lan-ham Act suit does not act as a vicarious avenger of the public’s right to be protected against false advertising. Instead, the statute provides a private remedy to a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor’s false advertising.” Id. at 230 (citations omitted); see also Colligan v. Activities Club, 442 F.2d 686, 692 (2d Cir.1971) (“The Act’s purpose, as defined in § 45, is exclusively to protect the interests of a purely commercial class against unscrupulous commercial conduct.”), cert. denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971); Joseph P. Bauer, A Federal Law of Unfair Competition: What Should be the Reach of Section 43(a) of the Lanham Act?, 31 UCLA L.Rev. 671, 681 (1984) (“[T]he Act leans toward the protection of owners of trademarks from misuse of those marks, rather than the protection of the public from deception.”).
Because of the Lanham Act’s primary focus upon protection of private parties from false advertising, actual harm to the party alleging a Lanham Act violation is a necessary element of a Lanham Act claim. “The plaintiff must ... show that defendant’s misrepresentation is ‘material, in that it is likely to influence the purchasing *951decision.’ ” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 922 (3d Cir.1990) (quoting Toro Co. v. Textron, Inc., 499 F.Supp. 241, 251 (D.Del.1980) (Stapelton, J.)); see also Sandoz, 902 F.2d at 231 (noting that a Lanham Act plaintiff must prove that “the defendant’s promotions contained a material representation or description”). Generally, the preferred evidence of an advertisement’s influence over purchasing decisions is actual consumer survey evidence. Even if an advertisement contains inadequately substantiated claims:
a [Lanham Act] plaintiff must produce consumer surveys or some surrogate therefor to prove whether consumers expect an advertising claim to be substantiated and whether they expect the level of substantiation to be greater than that which the defendant has performed. The effect of the advertisement is the critical determination, and it must be demonstrated by a Lanham Act plaintiff regardless of whether the claim is facially ambiguous.
Sandoz, 902 F.2d at 229.1
The only exception to the burden to prove that an advertisement is misleading through consumer survey evidence is if the advertisement is “literally false.” Sandoz, 902 F.2d at 228. This is so because a court may presume that a “literally false” advertisement will deceive the consuming public and, therefore, excuse the plaintiff from the time consuming and expensive task of conducting consumer surveys. “If advertisements are false on their face, a court may find a ‘tendency to deceive’ without looking to evidence of actual consumer response.” Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1111 (D.N.J.1987). However, because “[t]he effect of the advertisement on the consumer is the critical determination,” Sandoz, 902 F.2d at 229, courts must be hesitant to presume that an advertisement will materially deceive consumers. See Lillian R. BeVier, Competitor Suits for False Advertising Under Section 43(a) of the Lanham Act: A Puzzle in the Law of Deception, 78 Va.L.Rev. 1, 29-30 (1992) (explaining that when courts
“strain to find claims literally false, rather than literally true but potentially misleading, thereby short-circuiting any inquiry into consumer injury[,] [t]he result is that, ex post, the decisions tend to permit recovery in cases where the causal chain from the allegedly offensive party of the ad to the supposedly deceived consumer is highly attenuated; in such cases the conclusion that consumer deci-sionmaking was significantly distorted *952by the false statement seems unwarranted”).
In the present case, the district court, and now the majority, have concluded that Pennzoil’s challenged advertisements are literally false. In so doing, the majority concludes that Castrol met its appropriate burden of proving Pennzoil’s viscosity breakdown claims literally false, see majority opinion at 944-945, that the district court had not applied an incorrect “industry standards” criterion to evaluate Pennzoil’s substantiation for its claims, see id. at 945, and that the district court correctly determined that Pennzoil had, by “necessary implication,” made literally false claims of superior protection against engine wear. See id. at 946-948. I disagree with the majority’s analysis and conclusions. I would find that the district court applied legally incorrect criteria to guide its factual determinations, and therefore, that its conclusions must be reversed and this case remanded for an appropriate analysis.
I. THE BURDEN OF PROOF FOR A “NON-ESTABLISHMENT” CLAIM OF LITERAL FALSITY
As the majority has implicitly recognized, see id. at 943-944, a different burden of proof faces a Lanham Act plaintiff who challenges an “establishment” advertising claim that states that “tests prove” the asserted proposition than faces a plaintiff who challenges a “non-establishment” claim that makes no statement that “tests prove” the asserted proposition. See, e.g., Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 62 (2d Cir.1992) (“[Pjlaintiff bears a different burden in proving literally false an advertised claim that tests prove defendant’s product superior, than it does in proving the falsity of a superiority claim which makes no mention of tests.”). Such a distinction is quite logical because establishment claims state to the consumer that they are based upon tests and, therefore, provide the consumer with the expectation that tests actually support the claim at issue.
In an establishment case, it may be logical to hold, as has the Court of Appeals for the Second Circuit, that to establish that an advertising claim is literally false, “the plaintiff must demonstrate that such tests are ‘not sufficiently reliable to permit one to conclude with reasonable certainty that they established’ the claim made.” McNeil-P.C.C., 938 F.2d at 1549 (quoting Procter & Gamble Co. v. Chesebrough-Pond’s Inc., 747 F.2d 114, 119 (2d Cir.1984)). However, the appropriate burden of proof for literal falsity in a non-establishment case must be different. The crucial and difficult question is what that burden should be, considering that this Court has never expressly defined it.
The majority’s analysis of this question is confined to borrowing one piece of dictum from a recent decision of the Court of Appeals for the Second Circuit. The majority states that “[wjhere the defendant’s advertisement claims that its product is superior plaintiff must affirmatively prove defendant’s product equal or inferior.” Majority opinion at 943 (quoting Quaker State, 977 F.2d at 63). The majority then applies this standard to hold that, because Castrol cast doubt upon the test Pennzoil offered to support its claims and introduced other tests that purported to show that Castrol was equal to or superior to Pennzoil, Castrol had met its burden of proving Pennzoil’s advertisements literally false. See majority opinion at 943-945. The majority did not find it important that the district court “ignor[ed]” a consumer survey that purported to demonstrate that Castrol could not be affected adversely by Pennzoil’s advertisements. See id. I find that the majority’s analysis has ignored relevant pronouncements of this Court and has obscured the purposes of § 43(a) of the Lanham Act.
A. The Relevance of a Consumer Survey
There is a crucial fact involved in this case that was ignored by the district court and glossed over by the majority. The record in this case contains a consumer survey and expert testimony explaining that survey that purports to demonstrate *953that consumers interpreted Pennzoil’s claims that its motor oil “outperforms any-leading motor oil against viscosity breakdown” and provides “longer engine life and better engine protection” as involving or implying no comparison whatsoever between Pennzoil and Castrol, and in fact involving nothing more than a “dangling comparative” claim that consumers ignored. See App. at 1157-1244.2 The majority stated that the district court “did not err in ignoring [this] ... superfluous evidence.” Majority opinion at 943. The majority apparently feels that consumer survey evidence is relevant to Lanham Act analysis only after a court has found that an advertisement is literally true and must determine whether the advertisement misleads or deceives the public. I conclude, however, that the majority is mistaken in taking this approach.
The dictates of logic and of this Court compel the conclusion that consumer survey evidence is relevant to Lanham Act analysis at two analytical stages that precede a determination of whether an advertisement is misleading. First, consumer survey evidence is particularly relevant to the threshold determination of what message an advertisement conveys to consumers. This Court has established that “[w]hen analyzing a challenged advertisement, the court first determines what message is conveyed.... After determining the message conveyed, the court must decide whether it is false or misleading.” U.S. Healthcare, 898 F.2d at 922 (emphasis added).3 Indeed, because an advertisement may include a number of implicit and explicit claims and meanings, see BeVier, 78 Va.L.Rev. at 34-35,4 and because “context can often be important in discerning the message conveyed,” it may be impossible or improper facially to determine what messages an advertisement will convey to consumers. See U.S. Healthcare, 898 F.2d at 922. “[T]he court’s reaction [to an advertisement] is at best not determinative and at worst irrelevant. The question in [Lanham Act] cases is — what does the person to whom the advertisement is addressed find to be the message?” American Brands, Inc. v. R.J. Reynolds Tobacco Co., 413 F.Supp. 1352, 1357 (S.D.N.Y.1976).
Information is required “to determine what message was actually conveyed [by advertisements] to the viewing audience. Consumer surveys supply such information.” Johnson & Johnson Merck Consumer Pharmaceuticals Co. v. SmithKline Beecham Corp., 960 F.2d 294, 298 (2d Cir.1992). This Court has explained that the “critical determination” in Lanham Act cases is the “effect of the advertisement on the consumers.” Sandoz, 902 F.2d at 229. I find it inconsistent with the framework of *954Lanham Act analysis previously delineated by this Court to permit a district court to ignore consumer survey evidence regarding what message consumers derive from a challenged advertisement and, instead, to substitute the court’s own hypothesis of what message consumers might receive. While in the absence of consumer survey evidence, a court may have to determine what message a challenged advertisement conveys, it is illogical and, I conclude, an error of law in this Circuit, to ignore such evidence when it is presented. Cf. Alpo Petfoods, Inc. v. Ralston Purina Co., 720 F.Supp. 194, 199 (D.D.C.1989) (In determining message conveyed, court considered results of audience focus groups, survey research and testimony of members of audience; court concluded advertising was literally false.), rev’d in part on other grounds, 913 F.2d 958 (D.C.Cir.1990). Indeed, neither the parties in the present case, nor the majority, nor even have I found any Lanham Act case where a court disregarded a consumer survey in favor of its own interpretation of a challenged advertisement. It may occur that a court will find consumer survey evidence to be misdirected or unpersuasive. I conclude, however, that at least discussion and analysis of the survey results should be incorporated in the court’s determination of the case.
Second, consumer survey evidence is also highly relevant to a determination of whether an advertisement contains a “material representation or description [that] was false.” Sandoz, 902 F.2d at 231. This Court, in Sandoz and in U.S. Healthcare, has recently reemphasized that a Lanham Act plaintiff is entitled to relief only if an advertisement contained a false representation or description that was “material.” See Sandoz, 902 F.2d at 231; U.S. Healthcare, 898 F.2d at 922; see also Toro, 499 F.Supp. at 251; Alpo Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 964 (D.C.Cir.1990) (literally false advertisements must be “material in their effects on buying decisions” to be actionable under the Lanham Act). This Court’s adherence to a materiality requirement may distinguish its approach from that of the Second Circuit. “[T]he practical effect of the Second Circuit’s test is to presume a likelihood of injury whenever the defendant’s ad makes a single false statement and there is competition between the plaintiff and the defendant. The effect is, in other words, to presume injury from even the most innocuous of false claims and thus to lighten into virtual nonexistence plaintiff’s burden of proving that consumers were in fact deceived by them.” BeVier, 78 Va.L.Rev. at 29.5 In light of this Court’s adherence to a materiality requirement for Lanham Act relief, I find the majority’s reliance upon a Second Circuit standard that eliminates any materiality requirement to be misplaced.
Consumer survey evidence is extremely helpful in determining whether an allegedly false statement is material. Evidence of “consumer reaction” is essential to “the issue of whether or not the ad has actually affected consumer purchasing behavior.” Jeffrey P. Singdahlsen, Note, The Risk of Chill: A Cost of the Standards Governing the Regulation of False Advertising Under Section b3(a) of the Lanham Act, 77 Va.L.Rev. 339, 350-51 (1991). Even the Second Circuit has recognized that it is “well established that the truth or falsity of the advertisement usually should be tested by the reactions of the public.” American Home Products Corp. v. Johnson & Johnson, 511 F.2d 160, 165 (2d Cir.1978).6 In discussing literal falsity under *955the Lanham Act, Professor Bauer explains that “[c]onsumer surveys present the most reliable way of establishing the existence of falsity or deception. Indeed, most courts have found this approach disposi-tive, since the proper issue in these cases is the reaction of the group to whom the claim is directed.” Bauer, 31 UCLA L.Rev. at 737. It is only “in the absence of such reliable [consumer survey] evidence, [that] the court must make its own best judgment of the falsity of advertising claims.” Id. Therefore, I conclude that the district court committed an error of law in ignoring the consumer survey evidence presented in the present case. Both because that evidence would clarify what message Pennzoil’s advertisements conveyed to consumers and because it could demonstrate whether any false message contained in the advertisement would be likely actually to affect consumer purchasing decisions, I would remand this case to the district court for analysis of the consumer survey evidence.
B. The Appropriate Burden of Proof For a “Non-Establishment” Claim of Literal Falsity
I believe that the majority has also incorrectly analyzed the question of what burden of proof is shouldered by a Lanham Act plaintiff pursuing a literal falsity claim in a non-establishment case. The analytical framework articulated by the majority would allow a plaintiff to establish literal falsity in a non-establishment case, even when the defendant has some reasonable basis to support its advertisement, merely by introducing evidence that other “tests” disprove the defendants claim. Such a framework is inconsistent with this Court’s previous analysis of section 43(a) of the Lanham Act.
Judge Becker’s opinion in Sandoz contains a well-reasoned and thorough discussion of this Court’s interpretation of the Lanham Act. The majority dismisses San-doz because “the court found that the advertisements in question were not literally false." Majority opinion at 943, 944, 947. I feel that this Court’s most complete examination of section 43(a) of the Lanham Act cannot be so easily disregarded.
Principally, Sandoz established that consumer reaction evidence is necessary to a non-establishment claim of implied falsity. See Sandoz, 902 F.2d at 229. However, it also included a discussion pertinent to the question of literal falsity. First, the opinion defined literal falsity by referencing PPX Enterprises v. Audiofidelity Enterprises, 818 F.2d 266, 272 (2d Cir.1987). See Sandoz, 902 F.2d at 228. I find this reference significant. In PPX, “Audiofidelity fraudulently represented [on the record labels] that eight albums it marketed contained performances featuring Jimi Hendrix, when they did not.” 818 F.2d at 272. The court stated that consumer surveys were unnecessary because “[t]he only possible conclusion to be derived from Audiofi-delity’s conduct was that consumers actually were deceived by the misrepresentations.” Id. This ease represents the most narrow, restrictive definition of literal falsity: a bold faced lie about the most crucial element of the product at issue.7 In a case such as PPX, not only was there no evidence introduced that PPX’s claims were true, such evidence would have been impossible because its claim was absolutely false. I believe that the citation to PPX in San-doz suggests that this Court has adopted a narrow literal falsity standard.
Moreover, Sandoz includes a more comprehensive discussion of whether a claim is “literally false” such that it would “violate the Lanham Act absent proof that consumers are actually misled.” Sandoz, 902 F.2d *956at 228 n. 7. There, the court explains that “[a] Lanham Act plaintiff may be permitted to presume that consumers expect advertisers to have at least some semblance of support for their publicly-disseminated claims.” Id. The court also stated that with regard to a “completely unsubstantiated” claim, “there is a plausible argument that the claim is literally false because the advertiser has absolutely no grounds for believing that its claim is true.” Id. I believe that this discussion has two implications. First, it implies that Lanham Act defendant may have to produce some evidence that its non-establishment claim is valid. Second, it implies that, once a defendant has advanced such evidence, consumer survey evidence must be introduced to demonstrate that the plaintiff has been materially harmed by a false assertion in the defendant’s advertisement. These implications are also consistent with the Sandoz court’s reference to PPX. Cf. Alpo, 720 F.Supp. at 199. If a Lanham Act defendant can produce no evidence that its advertised claims are true, and its claims are material, see Sandoz, 902 F.2d at 231, a finding of literal falsity absent consumer reaction evidence may be proper.8
Based upon this Court’s analysis in San-doz and the issues of interpretation and materiality discussed in section I.A., I find that the appropriate burden of production for a Lanham Act defendant in a non-establishment case is to provide some credible substantiation or basis for belief that its claims are accurate. Once the defendant has met this burden, the plaintiff must prove that consumers are materially deceived by introducing consumer reaction evidence.9 This burden analysis is logically compelling when one recalls both the focus of the Lanham Act and the differences between establishment and non-establishment claims. The Lanham Act focuses upon how consumers actually are likely to react, not upon “prevent[ing] misrepresentation in the abstract.” BeVier, 78 Va. L.Rev. at 38. In an establishment case, an assertion that “tests prove” a claim may be literally false if “tests” do not prove that claim. Because these establishment claims cite “tests” in general terms, the validity of such a claim can be determined by weighing the credibility of competing tests. But in a non-establishment case, no tests are referred to; there is no explicit warrant for the advertiser’s claim. It is therefore inappropriate in a non-establishment case for the court to weigh tests absent evidence that consumers either expect tests to have been performed to substantiate the advertisers’ claims or have been deceived by those claims.10
In the present case, Pennzoil did introduce evidence that allegedly supported its advertised claims. The viscosity of motor oil is enhanced by additives, including polymers. Pennzoil contends that its “star” polymer additive provides greater protection against viscosity breakdown. Pennzoil supports this claim with results from the ASTM D-3945 test. This test showed that Pennzoil motor oil suffered less viscosity *957loss percentage than Castrol motor oil.11 The district court relied upon other tests that it found more credible to hold that Pennzoil’s advertisements were literally false. I find that the district court articulated and applied an improper burden of proof. I would remand to the district court to analyze whether the ASTM D-3945 Test possessed the minimal credibility necessary so that Pennzoil had a reasonable basis to believe its claim true and, if so, to examine the consumer survey evidence presented to determine if consumers would likely be misled by Pennzoil’s advertisements.12
II. INDUSTRY STANDARDS ANALYSIS
Apart from the questions of the relevance of consumer survey evidence and the appropriate burden of proof in this case, I believe that the district court committed an error of law by articulating and applying an “industry standard” criterion to judge the scientific tests of motor oil performance introduced by Pennzoil and Castrol. The district court relied upon eases where courts looked to industry standards or custom to determine the meaning of words in advertisements, to find that, as a matter of law, a Lanham Act plaintiff in a non-establishment case can prove an advertisement literally false by demonstrating that it is not proven true by conformity to an industry standard or a test that comprises an industry standard. See district court opinion at 436-37. The district court applied this analysis to the “viscosity breakdown” claim and then, by “necessary implication,” to the implied engine wear claim.
This “industry standards” analysis is fallacious. Under the Lanham Act, “[cjontext can often be important in discerning whether the message conveyed is literally false and this is particularly true where, as here, the target of the advertising is not the consuming public but a more well informed and sophisticated audience.” Princeton Graphics Operating, L.P. v. NEC Home Electronics, Inc., 732 F.Supp. 1258, 1266 (S.D.N.Y.1990). The implication of this statement is that Lanham Act standards may be different when an advertisement is targeted to a specific audience than when an advertisement is targeted to the general public. All of the cases cited by the district court to support the “industry standard” test are cases where the target audience of advertisements were knowledgeable members of the industry at issue. See Johnson & Johnson v. GAC Int’l, Inc., 862 F.2d 975 (2d Cir.1988) (advertisement of “polysapphire” dental bridge to orthodontists where product did not conform to industry definition of “sapphire”); Princeton Graphics, 732 F.Supp. at 1262 (advertisement of “compatible” video monitor to computer stores and salesmen where product did not conform to industry definition of “compatible”); American Rockwool, Inc. v. Owens-Corning Fiberglass, 640 F.Supp. 1411 (E.D.N.C.1986) (advertisement of fiberglass that will result in less “quality control” time to construction companies demanded definition of “quality control” used in the industry).
The present case is quite different from those “industry standards” cases. Here, the audience is the general public, not a specific industry. “[Technical industry standards are often irrelevant to consumer expectations.” W.L. Gore & Assoc. v. Totes, Inc., 788 F.Supp. 800, 807 (D.Del. *9581992). The general public has no idea what comprises the “industry standard" for oil viscosity breakdown. It is illogical to hold that the general public expects claims of motor oil superiority to be based upon an “industry standard” rather than upon a non-standard, but scientifically accurate, test. Furthermore, merely because a test does not set or comprise an industry standard does not render that test invalid or irrelevant. Just as the ACT is not invalid merely because the SAT is the industry standard for college admissions at eastern U.S. schools, the ASTM should not be invalid just because the “Stay-In-Grade” and “HTHS” tests comprise the industry standards for motor oil viscosity analysis.13
The majority grapples with the district court’s “industry standard” analysis by stating that “the district court did not enjoin Pennzoil’s advertisements merely because the ASTM-3945 was not an industry standard test.” Majority opinion at 945. I disagree. The district court explained that “[tjhere is no standard or specification in the motor oil or automotive industries that grades or ranks motor oils based on percent permanent viscosity loss, as measured by ASTM D-3945 or any other method.” District court opinion at 438. The district court then explicitly held that “[b]y industry standards the empirical data made available to the Court and the evidence provided through expert testimony renders Pennzoil’s viscosity breakdown superiority claim literally false.” Id. The district court discounted Pennzoil’s test because it did not conform to an industry standard. Therefore, its factual analysis was controlled by an incorrect legal standard. I would remand for reevaluation of the legitimacy of the motor oil viscosity tests without regard to use as an “industry standard” as a controlling criterion.
III. NECESSARY IMPLICATION ANALYSIS
Additionally, I find that the district court’s application of the “necessary implication” doctrine to the engine wear claim was improper. First, this analysis merely extended the “industry standards” analysis made with regard to the “viscosity breakdown” claim to the engine wear claim. Since it was erroneous to perform the “industry standards” analysis in the first place, it is erroneous to extend that errant analysis to the engine wear claims.
Second, the present case is far different from the “necessary implication” cases cited by the majority and the district court. In Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., No. 81 CIV 731, 1982 WL 121559 (S.D.N.Y.) June 9, 1982 (LEXIS GenFed Library, Dist file), the only possible interpretation of the advertisement was that twenty-one top chefs had selected Robot-Coupe professional food processors over Cuisinart professional food processors when, in fact, Cuisinart didn’t manufacture professional food processors. Therefore, by “necessary implication,” the ad was literally false. In Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190 (S.D.N.Y.1987), a pregnancy test that advertised results in “as fast as 10 minutes” was literally false “by necessary implication” because, while it was possible to obtain conclusive positive results in 10 minutes, conclusive negative results required at least 30 minutes. These cases clearly dealt with false representations of fact, not allegedly false implications of a possibly invalid, but scientifically accurate, test. The kind of implication drawn by the district court is not the type of clearly false *959factual implication required by the Cuisi-narts and Tambrands ads.
Moreover, the majority’s reliance upon Gillette Co. v. Wilkinson Sword, Inc., No. 89 Civ. 3686 (KMW) (S.D.N.Y. Jan 9, 1991) is misplaced. In Gillette, the defendant’s claim that its shaving product was “smoother” was found to be false. The court relied heavily upon consumer survey evidence to determine both what messages the challenged advertisements conveyed to consumers and, ultimately, to hold that the messages were implicitly false. See id., slip op. at 9-23, 27-31, 43. Despite the presence of one sentence stating that “[t]he court finds that the “six times smoother” claims, and all claims using the word “smoother” in Wilkinson’s advertising for Ultra Glide, necessarily imply a claim of shaving smoothness superiority,” id., slip. op. at 9, the court’s analysis and holding in Gillette are entirely consistent with the Lanham Act analysis I advocate and believe properly reflects the law in this Circuit.
While I certainly agree with the majority that “a court must analyze the message conveyed in full context” when assessing whether an advertisement is literally false, see majority opinion at 946, that context is properly determined through consumer reaction evidence, not through the subjective interpretation of the district court. I cannot agree with the majority’s finding that, because Pennzoil’s Executive Vice President of Marketing “conceded” in his deposition that he thought Pennzoil’s advertisement might convey the message that “a consumer who selects a motor oil other than Pennzoil runs an enhanced risk of engine failure,” the district court did not err by ignoring consumer survey evidence that demonstrated that not one of 170 consumers tested found that Pennzoil’s advertisement conveyed that message. App. at 1203-05. See majority opinion at 947. The “necessary implication” analysis reaffirms my conclusions that it was improper to ignore the consumer survey evidence presented in the record, that the district court and majority articulated and applied an incorrect burden of proof in this case, and that the district court’s analysis was fallaciously grounded in an “industry standards” criterion. I would reverse and remand this case for appropriate attention to the consumer survey evidence in the record and for a reevaluation of the tests regarding motor oil viscosity.
IV. THE INJUNCTION
Because I would reverse and remand this case based upon the merits of the underlying Lanham Act claim, the district court’s injunction would be reversed. I am troubled by the majority’s assertion that the district court’s injunction, which Pennzoil claims would ban future, properly supported, advertisements that its motor oil provides better protection against viscosity breakdown than does Castrol motor oil, is not subject to prior restraint analysis because Pennzoil’s present claims have been found false. See majority opinion at 949. “Any system of prior restraints of expression [bears] a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). Certainly the subject of prior restraint analysis in the present case is future, truthful advertising that would enjoy first amendment protection. Therefore, prior restraint analysis is appropriate in the present case. See Beneficial Corp. v. FTC, 542 F.2d 611 (3d Cir.1976); Standard Oil Co. of California v. FTC, 511 F.2d 653 (9th Cir.1978).
Moreover, the case the majority cites for the proposition that the district court’s injunction was not overbroad, Quaker State, 977 F.2d at 66, involved a “preliminary injunction ... prior to a full adjudication on the merits,” not a permanent injunction after a trial as in the present case. While a preliminary injunction may be valid even if it would prohibit a hypothetical advertisement that is extremely unlikely to exist before the trial date, similar reasoning is inapplicable to a permanent injunction after a full trial. This Court has stated that an injunction against deceptive advertising must extend “no further than is necessary for the elimination of the deception.” Beneficial Corp, 542 F.2d at 620. Indeed, in finding an injunction overbroad in a Lan-ham Act ease, the Court of Appeals for the D.C. Circuit explained that “[r]edressing the harm that these claims have caused in *960the puppy food market does not require that a court supervise all future debate on the anion gap theory.” Alpo, 913 F.2d at 972.14 I fear that the majority may have failed to heed the warning of the Court of Appeals for the Ninth Circuit in a similar Lanham Act Case:
Nothing is clearer in the emerging law of commercial free speech than that false or misleading commercial speech is clearly “subject to restraint.” But the language of the injunction is much broader than the Conclusion of Law and, perhaps unintentionally, raises First Amendment concerns. As currently written, the injunction seems to prohibit comparative advertising even if it is truthful.
U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1042 (9th Cir.1986). I find that the language of' the injunction, which prohibits Pennzoil for all time from “broadcasting, publishing or disseminating, in any form or medium, any commercial or advertisement that claims” that Pennzoil protects against viscosity breakdown, engine wear or engine failure better than “any leading motor oil,” improperly restrains Pennzoil’s commercial speech because Pennzoil is enjoined from broadcasting future, even truthful advertisements proclaiming the superiority of its motor oils.
In summation, my position reflects my conviction that in Lanham Act litigation, the courts are not the vicarious avengers of any false statement that may appear in an advertisement. The courts are rather the referees who prevent material misrepresentations that deceive the intended audience of advertising. This role requires that materiality be established. I cannot see how that can be done reliably or effectively under the procedures approved by the majority.
Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS and ROSENN,* Circuit Judges.. Were the burden of proof shouldered by a Lanham Act plaintiff too lenient, the private remedy provided by the Act could be substantially abused. First, an improperly enhanced "risk of suit deter[s] existing advertisers from speaking, [and] it may also have a substantial anticompetitive effect by increasing barriers to entry.” Jeffrey P. Singdahlsen, Note, The Risk of Chill: A Cost of the Standards Governing the Regulation of False Advertising Under Section 43(a) of the Lanham Act, 77 Va.L.Rev. 339, 366 (1991). In fact, in responding to a question posed by the district judge, counsel for Castrol explained that it delayed before suing Pennzoil and stated: "We looked at those Pennzoil ads and we said, what is the possible standard that Pennzoil is going under? If this was a minor company or a minor advertiser in the industry, we might have sued more quickly, because we would have said, clearly, this is not a responsible outfit; clearly these are not responsible claims; let’s sue.... [Y]ou know, sometimes, you say based on the character of the Defendant, you cannot believe they have any evidence.” App. at 178.
However, minor competitors are not necessarily irresponsible. They may in fact be newly emerging competitors with high ethical standards but few resources to defend against costly litigation. Quick lawsuits with too easy a burden of proof against small competitors could have a stifling effect on competition. The Lan-ham Act should not provide an instrument to suppress without justification a new competitor.
Second, an overly lenient burden of proof would over-deter advertisers and decrease the production of truthful advertising, thereby harming consumers. See Lillian R. BeVier, Competitor Suits for False Advertising Under Section 43(a) of the Lanham Act: A Puzzle in the Law of Deception, 78 Va.L.Rev. 1, 15 (1992); Singdahlsen, 77 Va.L.Rev. at 366.
Third, "[distinguishing [false inferences] from the truth and punishing them ex post entails substantial error and enforcement costs for the legal system,” costs that ultimately will be passed, in part, to consumers. BeVier, 78 Va.L.Rev. at 15.
.The record includes a consumer survey, initially commissioned by Castrol and, after discovery, introduced by Pennzoil, in which 170 consumers were asked about their reactions to one of the challenged Pennzoil advertisements. Virginia Miles, an advertising expert testified on Pennzoil's behalf based upon her interpretation of the consumer survey. When asked whether the advertisements convey the message that "consumers who use motor oils other than Pennzoil, such as Castrol motor oils, do have to ‘worry’ about viscosity breakdown that ‘means’ engine failure and shorter engine life," Ms. Miles answered: "They would not. This is not — excuse me — the message in any of the Pennzoil ads or commercials. There is not one playback in the verbatims that says anything like this. For that matter, as I said, there’s no mention of Castrol at all in the — anywhere in the surveys." App. at 1214. When asked if the advertisements lead consumers to connect Cas-trol and Pennzoil, Ms. Miles said, “No, I don’t think it does at all. I don’t think that consumers would connect any of this to Castrol, whether explicitly or implicitly, because it’s not there. As I said before, they won’t work at the ad and try to get beyond it. And there’s not one mention of Castrol anywhere in the survey or in the verbatims. So no, absolutely not.” App. at 1215.
. The majority has stated that this Court’s decision in U.S. Healthcare has been criticized, see majority opinion at 945 n. 6. I have, however, found no criticism of this decision with regard to any of the propositions for which I rely upon it.
. Professor BeVier explains that an advertisement can both mean different things to different consumers and can have multiple direct and indirect meanings for any given consumer. See id. She states that “[a]n interpretive methodology that ignores even the existence of such indirect meanings seems destined to generate interpretations that are themselves misleading because they are so incomplete.” Id. at 35.
. The Second Circuit cases relied upon by the majority contain no reference to or reliance upon any materiality standard. See Quaker State, 977 F.2d at 57-66; McNeil-P.C.C., 938 F.2d at 1544-1551; Johnson & Johnson v. GAC Int'l Inc., 862 F.2d 975 (2d Cir. 1988); Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312 (2d Cir.1982).
. I am aware of the additional language in American Home Products quoted by the majority, supra at 947-948 n. 8. However, American Home Products in no way supports the proposition that consumer survey evidence should be ignored when it is present in the record before a court that must determine what message an advertisement conveys. Moreover, I draw a distinction between the concrete factual misstatements found "actually false” by the Court of Appeals for the Second Circuit, see PPX Enterprises v. Audiofidelity Enterprises, 818 F.2d 266, 272 (2d Cir.1987) (holding actually false Audio-*955fidelity’s representation that "eight albums it marketed contained performances featuring Jimi Hendrix, when they did not”), and general representations of the superiority of a product that may encompass many aspects and interpretations. I find the citation from American Home Products supports my point of view.
. In the interest of completeness, I suppose that some consumers might purchase records as an exploration event, hoping merely to find some interesting music on the record. However, I do not feel that it is too risky to presume that the content of a record is a material element to most consumer’s purchasing decisions.
. This would assume that the court reasonably could determine what messages a challenged advertisement conveyed to consumers. See discussion supra § I.A.
. I come to this conclusion despite the majority's assertion that "Sandoz definitively holds that a plaintiff must prove either literal falsity or consumer confusion, but not both." Majority opinion at 943.
. It is also possible to reconcile the Second Circuit's position with this analysis. In its recent opinions, the Court of Appeals for the Second Circuit has stated that in non-establishment claims for literal falsity, a Lanham Act plaintiff must affirmatively prove that the challenged “ads were false.” See Procter & Gamble, 747 F.2d at 119; see also Quaker State, 977 F.2d at 63 ("Where the defendant’s advertisement claims that its product is superior, plaintiff must affirmatively prove defendant’s product equal or inferior."). However, these cases, none of which actually involved non-establishment claims that were "disproven” by contrary affirmative evidence, do not clearly delineate what evidence is necessary as affirmative proof of falsity. It is quite possible, especially in light of the Second Circuit's prior statement that "the truth or falsity of the advertisement usually should be tested by the reactions of the public," see American Home, 577 F.2d at 165, that consumer reaction evidence is the type of evidence necessary to "disprove" a non-establishment claim.
. Even though Castrol criticizes Pennzoil’s use of the ASTM D-3945 test here, there is evidence in the record that "Castrol has used ASTM D-3945 to support its viscosity breakdown claims since 1980.” App. at 1736. The majority claims that the ASTM-3945 test "simply does not measure viscosity breakdown.” Majority opinion at 945 n. 5. Such a characterization is problematic. First, even were this true, it may have been reasonable to rely upon this test to the extent Pennzoil and its competitors had previously used the test to support their viscosity breakdown claims. Second, as is discussed more thoroughly infra Section II, the district court found merely that the ASTM-3945 "is not recognized in either the motor oil or automotive industries as a standard of viscosity breakdown.” District court opinion at 432.
. Of course, the court would have to examine the consumer survey evidence in this case to determine what messages were conveyed to consumers. However, the consumer reaction analysis of deception might be different or more comprehensive than the threshold interpretive analysis required in § I.A.
. Moreover, the industry standard analysis conflicts with the burden of proof analysis proper for non-establishment claims. Instead of a burden merely of providing some basis for a non-establishment claim, see, e.g., Procter & Gamble, 747 F.2d at 119, a Lanham Act defendant would have the burden of proving that a test was valid and comprised an industry standard. Such a burden is actually higher than that required for establishment claims. In establishment cases, a defendant need only show that the plaintiff has not proven that the defendant’s test is "not sufficiently reliable to permit one to conclude with reasonable certainty that they established the proposition for which they were cited.” Id. Under the "industry-standard” analysis, the defendant must affirmatively prove not only the test's reliability but that it actually comprises an industry standard. Such analysis is inconsistent with prior precedent in general, ignores this Court’s affinity for consumer survey evidence, and surpasses the bounds of logic.
. In FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 44-45 (D.C.Cir.1985), cited by the majority at 949, the court ordered the district court to modify the injunction at issue "to allow for the presentation of the results of a different testing system [for comparative cigarette tar content], so long as any advertisement of such results provides sufficient data to avoid deceptiveness_”