With the rise of panacea detergent that can remove any stain, “healthy” junk food, and indestructible cars, it sort of seems like the world today has reached a utopian status reminiscent of Woody Allen’s Sleeper.These products sound too good to be true for a reason on a global scale, we live in an economic ecosystem that relies on coaxing consumers into purchasing bigger, better products to fulfill needs that don’t necessarily change significantly over time. While United States consumers have been protected from false advertising since the Lanham Act in 1946—which outlawed deceptive advertising practices outright-marketers continue to teeter on a precarious fulcrum between the factual functionality of a product and its more fantastical properties.
False advertising is a tricky business in itself, and its influence fans across a wide gamut of nuanced marketing niches. For the student and entrepreneur, knowing how to define and push the limits in advertising is important for personal growth. For the artist, the writer, or the political campaigner, spreading the message of your product in a way that promotes genuine interest in facts is pivotal to establishing brand trust. And for the consumer, of course, it’s always nice to know when you might be paying for something that won’t provide what it claims to—not because it doesn’t want to, but because it simply can’t.
False Advertising Law
Snake oils and patent medicine have been prevalent for many years, but it wasn’t until the 20th century that the United States saw a need to enact laws to protect consumers from deceptive advertising. Today, legislation exists on both a state and federal level that helps safeguard consumer trust while also preserving a marketer’s freedom of speech. As you can imagine, the balance between these two pivot points is extremely fragile.
Academic reading on false advertising law:
- Federal Advertising Law: An Overview, is a report created for Congress in 2005 that details some of the complexities involving federal advertising of things like alcohol, tobacco, and telemarketing.
- State Deceptive Trade Practices and False Advertisement, an interesting case study by Anya Prince from Georgetown Law, this paper examines whether or not “state deceptive trade and advertising laws adequately protect consumers of genetic tests through direct-to-consumer marketing.”
- False Advertising, Animals, and Ethical Consumption, by Carter Dillard, discusses false advertising as it relates to animal advocacy and informed consumption.
- Prudential Standing Limitations on Lanham Act False Advertising Claims, by Gregory Apgar, is an interesting look at many landmark cases surrounding the Lanham Act, including the McDonald’s Corporation Monopoly Game scandal.
- Assessing Advertising Practices in the Automobile Industry takes a look at the inconsistences in marketing campaigns and safety test results surrounding the sale of vehicles.
- Internet Linking Law At Five Years, by Mark Sableman, addresses the challenges of practicable marketing law in the ever-changing Internet.
- Exploring the Legal Pitfalls of User-Generated Content touches on issues relevant to today’s Web 2.0 network that continues to expand.
- Moral Rights, Dastar, and the False Advertising Prong of Lanham Act Section 43(a) is an intriguing look at this portion of the Lanham Act with popular culture examples.
- This false advertisingportion of Laws.com lays down information on the legality surrounding false claims in advertising, and even shows examples of the types of commercials that usually elicit government investigation for fraudulent advertising practices.
- The Lanham Act was the first federal regulation to criminalize false advertising in the U.S., though many states made the practice illegal long before the bill was ever passed. Misrepresentation statues are found in subchapter III, and this section has important implications on what defines false advertising.
- The Metropolitan Corporate Counsel interviewed two communications lawyers to explain the ins and outs of false advertising. The lawyers Larry Weinstein and Brendan O’Rourke describe the laws and pivotal court cases that have since directed their interpretation.
- Weight-Loss Patch False Advertising Scandal
- FTC, Florida Attorney General Charge Promoters of Bogus Alcohol Cure
- Investigation of Ad Claims that Kellogg’s Rice Kripsies Benefits Children’s Immunity
- Complaints and investigations against Orkin Exterminating Company’s pesticide usage and descriptions
- Action against Mattel Incorporated’s unsubstantiated claims about environmentally friendly aerosol products
- The case of Fresh Step v. Super Scoop litters brings up many contentious arguments surrounding false advertising. It questions consumer perception of a product compared to its actual properties, only in this case the consumers are cats.
- If you’d like to see the most blatant examples of false advertising in the last ten years, check out these misleading advertisements.
- Political campaign advertisements, unlike commercial marketing, have no stipulations on the veracity of their claims since they promote people, and people have freedom of speech regardless of its truthfulness. Slander rules still apply, of course.
- The Value of Truthful Negative ads is an interesting Huffington Post article that asks whether or not the name-calling and mud-raking involved in political campaigns is actually good for democracy.
- Yes We can Have A False Political Advertising Statue, published by the UCLA Journal of Law & Technology, offers solid insight on the issue of advertising in political campaigns.
- North Dakota’s publication of campaign practices and their interpretation as marketing schema.
- The Texas Ethics Commission’s short guide to the prohibition against using school district resources for political advertising in connection an election.
- Political Advertising: What Effect on Commercial Advertisers?, by Shanto Iyengar and Markus Prior of Stanford University has interesting things to say.
- This thorough discussion from the Natural Resources Defense Council describes ways in which bottled water manufacturers often exaggerate the quality of the products.
- Often, advertising language can be misleading. This article discusses some marketing jargon and how it has evolved to dupe consumers over time.
- KFC’s Claims That Fried Chicken Is a Way to “Eat Better” Don’t Fly
More on false advertising law:
Recent Scandals in False Advertising Law
Thousands of cases involving misleading advertisements have appeared in courthouses around the United States. A small sampling of recent cases can be found below, some of which are still being aggressively pursued in the courts.
Marketing Political Candidates
Unlike other types of advertisements, campaigns for political candidates do not follow the rules and regulations set forth by the Federal Trade Commission. Since these campaigns promote people, commercials and other ads are governed by different constraints that both help and hinder hopeful government officials.
False, or just Misleading?
False advertising is a common claim for a lawsuit, but proving that a company knowingly misinformed its customers is extremely difficult. Here are some of the subtle differences that distinguish illegal advertising from that which is simply misleading—in the legal arena the difference is often opaque.