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The better way to harmonize the idea of an objective standard with the idea of what consumers actually believe (which the court seems to think of as subjective on an individual basis) is the venerable concept of a substantial number of reasonable consumers. The fact that a substantial component of the customer base is deceived is evidence that their conclusions are reasonable (as opposed to idiosyncratic), and objective things can be said about the aggregate of consumers.] Likewise, even if the menthol representations werent inherently misleading, they were plausibly in fact misleading

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Suck on a menthol cough drop and youll feel your airways open up, a cooling breeze as you breathe in and a momentary easing of the scratchiness in your throat

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Retrieved April 4, 2018