dissenting.
In my view, Johnson-Merck, the manufacturer of Mylanta II, has established that Rorer, the manufacturer of ESMP, made “misleading” statements, within the meaning of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), in ESMP television commercials. A statement is “misleading” under Section 43(a) if it has “a tendency to deceive a substantial portion of the intended audience.” U.S. Healthcare, Inc. v. Blue Cross, 898 F.2d 914, 922-23 (3d Cir.), cert. denied, 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33 (1990). Such a tendency must be demonstrated by evidence concerning the way in which consumers interpret the statement. See, e.g., Castrol, Inc. v. Pennzoil Co., 987 F.2d 939, 951 (3d Cir.1993) (Roth, J., dissenting); Sandoz Pharmaceuticals Corp. v. RichardsonVicks, Inc., 902 F.2d 222, 229 (3d Cir.1990).
Rorer’s commercials stated that ESMP is the “strongest antacid.” This statement is not literally false with respect to liquid ESMP because liquid ESMP is superior to liquid Mylanta II at neutralizing acid in the laboratory. But as the district court found, ESMP is not “strongest” at providing relief for humans. In light of this finding, I believe that Johnson-Merck amply demonstrated that the statement at issue is “misleading.”
Johnson-Merck proved, as the majority recognizes, that Rorer set out to deceive consumers into believing that ESMP is the “strongest” at providing relief to humans. Moreover, Johnson-Merck showed that when potential consumers were surveyed1 and *137asked what they thought Rorer’s advertisements said that ESMP is “strongest at doing,” approximately 90% responded in substance that they interpreted the advertisements to mean that ESMP is “strongest” at giving relief.2 In other words, of those who interpreted Rorer’s statement when asked to do so, approximately 90% were misled — just as Rorer originally intended.
The district court and the majority dismiss these striking survey results on the ground that asking what the advertisements said that ESMP is “strongest at doing” is leading or suggestive. The validity of this conclusion depends on whether a Section 43(a) plaintiff must show that an allegedly misleading statement in an advertisement would be misinterpreted by (a) a substantial portion of all those who view, hear, or read the advertisement, including those who do not pay attention to the statement; or (b) a substantial portion of those who do pay attention to the statement and attach some meaning to it.
If a Section 43(a) plaintiff must make what I have described as showing (a), then the district court and the majority are correct, because asking what the advertisements said that ESMP is “strongest at doing” does lead the person responding to pay attention to and interpret the statement. But holding that a Section 43(a) plaintiff must make showing (a) means that an advertiser may employ the following cynical strategy. The advertiser may deliberately set out to mislead the consuming public. The advertiser may pay considerable sums of money to an advertising agency to create' advertisements containing misleading statements that the advertiser hopes will influence consumers. The advertiser may spend large amounts of money to broadcast, publish, or otherwise distribute these advertisements. Subsequently, when sued for violating the Lanham Act, the advertiser may rely on survey research showing that most of the consuming public, habituated to “tune out” much of the commercial advertising with which it is bombarded daily, cannot without prompting call to mind the misleading statement that the advertiser tried so hard and paid so dearly to get across. These survey results can be used to prove that the advertiser’s statement was not “misleading” because most of the persons who viewed or read it did not pay attention to it. I cannot believe that the Lanham Act was meant to countenance such a result. Nor do I believe that such a result is required by any of our prior decisions.
In my view, a Section 43(a) plaintiff can prove that a statement is “misleading” by making what I describe above as showing (b), i.e., by showing that the advertiser’s statement would mislead a substantial portion of those consumers who interpret it. If this understanding of Section 43(a) is correct, asking what the ads in this case said that *138ESMP is strongest at doing was not significantly leading or suggestive in any sense that is legally relevant, since this question does not induce the person responding to adopt any particular interpretation of the allegedly misleading statement.3
For these reasons, I would hold that Johnson-Merck has shown that Rorer’s statement that ESMP is the “strongest antacid” is misleading. I also believe that Johnson-Merck satisfactorily proved that it is likely to have been damaged by this misleading statement.4 I would therefore reverse the decision of the district court and remand for the entry of a permanent injunction against Rorer.
. Reports of five surveys were before the district court, but the court focused on two surveys, the "Firefighter” commercial survey conducted in September 1991, and the "Minty Tablets” commercial survey conducted in October 1991. In both of these surveys, consumers were asked the following questions:
(2a) What ideas did the advertiser try to get across about Maalox [tablets] in the commercial?
(2b) What other ideas did they try to get across?
(2c) What did they show in this commercial about Maalox [tablets]? What else? Anything else?
*137In the "Firefighter” survey, the following additional questions were asked:
(3) In the commercial you just saw, they said Maalox is the strongest antacid there is. What does that mean to you?
(4) According to the commercial you just saw, what do you think Maalox is the strongest at doing?
In the “Minty Tablets” survey, the following additional questions were asked:
(3a) In the commercial you just saw, they said Maalox tablets are the strongest. What does that mean to you?
(3b) What is the commercial saying that Maalox tablets are the strongest at doing?
. In responding to question (4) of the "Firefighter” survey, 93% of those who viewed the version of the commercial that was broadcast on NBC and CBS, and 91% of those who viewed the version that was broadcast on ABC, provided answers of this type. In responding to question (3b) of the "Minty Tablets” survey, 88% of all viewers provided similar answers. The answers to question (3) of the "Firefighter" survey and question (3a) of the "Minty Tablets” survey also provided strong support for Johnson-Merck’s position. Only 7% (NBC/CBS version) and 6% (ABC version) of respondents to question (4) of the "Firefighter” survey interpreted Rorer's statement to refer to "how [its] product acts on acid/neutralization." In the “Minly Tablets" survey, only 5% of respondents to question (3b) made a connection between Rorer's statement and "acid/neutralization.”
Johnson-Merck argues strenuously that even the answers to questions (2a), (2b), and (2c) of the "Firefighter” and "Minty Tablets” surveys, when properly interpreted, establish that Rorer's claim that ESMP is the “strongest antacid" is misleading to consumers. Because I believe that questions (3) and (4) of the "Firefighter” survey and questions (3a) and (3b) of the "Minty Tablets” survey were highly probative and were not leading or suggestive in a way that is legally significant, I do not find it necessaiy to address this argument.
. I recognize that a statement in an advertisement might be interpreted differently by (1) those who interpret the statement only when a survey- or asks them to do so, and (2) those who interpret the statement on their own when they view the advertisement. I also recognize that the survey results I have relied upon were derived from persons in the first of these categories, when in fact answers derived from persons in category (2) might better represent the views of the consuming public. Nevertheless, even assuming for the sake of argument that a Section 43(a) plaintiff must show that an allegedly misleading statement in an advertisement would mislead a substantial portion of persons in category (2), I would still conclude that Rorer’s statement is misleading. First, since approximately 90% of persons in category (1) were mislead, I think it is safe to assume that the percentage of persons in category (2) who were mislead would not be so much lower that this percentage would not constitute a “substantial portion” of the viewing audience. See pg. 134 n. 14 (citing cases suggesting that 20% is a "substantial portion” of the viewing public). Second, even Rorer's expert admitted that in this case there would probably not have been any material difference between the percentage of persons in these categories who were misled. See Joint App. at 1272-73 (Test, of Dr. Seymour Lieberman).
. Because the majority has not discussed this question, I have not done so in this opinion.