False advertising

Overview

False advertising is the act of publishing, transmitting, distributing or otherwise publicly circulating an advertisement containing a false claim or statement, to promote the sale of property, goods or services. A false advertisement can be classified as deceptive if the advertiser deliberately misleads the consumer, rather than making an unintentional mistake. A number of governments use regulations or other laws and methods to limit false advertising.

Types of deception

False advertising can take one of two broad forms: an advertisement that may be factually wrong, or intentionally misleading. Both the types of false advertising may be presented in a number of ways.

Photo manipulation

Photo manipulation is a technique often used in the cosmetics field and for weight loss commercials to advertise false (or non-typical) results and give consumers a false impression of a product's capabilities. Photo manipulation can alter the audience's perception of a product's effectiveness; for example, makeup advertisements may use airbrushed photos. Another example is using darkroom exposure techniques, darkening and lightening photographs. Some manipulation techniques are praised for the impressive artwork, whereas others are looked down upon, especially in cases where others are deceived.

Hidden fees and surcharges

Hidden fees can be a way for companies to trick unwary consumers into paying more for a product which was advertised at a specific price to increase profits without raising the price of the product. The Fine print may be used to obscure fees and surcharges in advertising. Another way to hide fees is to exclude shipping costs when listing the price of goods online, making an item look less expensive than it actually is. A number of hotels charge resort fees, which are not typically included in the advertised price of a room.

Fillers and oversized packaging

Some products are sold with fillers, which increases the legal weight of a product with something that costs the producer very little compared to what the consumer thinks they are buying. Some food advertisements use this technique in products such as meat, which can be injected with broth or brine (up to 15 percent), or TV dinners filled with gravy (or other sauce) instead of meat. Malt and ham have been used as filler in peanut butter. Non-meat fillers may be high in carbohydrates and low in nutritional value; one example is a cereal binder, which usually contains flour and oatmeal. Some products may come in a large container which is mostly empty, leading a consumer to believe that the total amount of food is greater than it is.

Falsifying quality and origin

Another form of deceptive advertising falsifies the quality or origin of a product. If an advertiser shows a product with a certain quality but knows the product has defects or is not of the same quality, they are falsely advertising the product. Producers may misrepresent where a product is manufactured, saying (for example) that it was produced in the United States when it was produced in another country.

Misleading health claims

The labels "diet," "low fat," "sugar-free," "healthy" and "good for you" are often associated with products which claim to improve health. Advertisers, aware of consumer desire to live healthier and longer, describe their products accordingly. Food advertising influences consumer preferences and shopping habits. Highlighting certain ingredients may mislead consumers into thinking they are buying healthy products when, in fact, they are not. Dannon's Activia yogurt was advertised as scientifically proven to boost the immune system, and was sold at a much higher price. The company was ordered to pay $45 million in damages to consumers after a lawsuit. Food companies may end up in court for using misleading tactics such as:

Using a "tick panel" above a nutritional label, with a large, bold font and brighter colors Highlighting one healthy ingredient on the front of a package with a large check mark (a "tick") next to it Using words like healthy and natural, which are regarded as weasel claims: words contradicting claims which follow them Using words like helps on product labels, which may mislead consumers into thinking a product will help Many US advertisements for dietary supplements include the disclaimer, "This product is not intended to diagnose, treat, cure, or prevent any disease", since products intended to diagnose, treat, cure, or prevent disease must undergo FDA testing and approval.

Comparative advertising

Companies use a number of advertising techniques to assert that their products are the best available. One of the most common marketing tactics is comparative advertising, where "the advertised brand is explicitly compared with one or more competing brands and the comparison is obvious to the audience." Laws about comparative advertising have changed in the United States; perhaps the most drastic change occurred with the 1946 Lanham Act, the backbone of all cases involving false advertisement. Marketing strategies have become more aggressive, however, and the provisions of the Lanham Act have become outdated. USCA §1125 was passed in 2012 as an addition to the Lanham Act, clarifying issues about comparative advertising. Anyone who uses words, symbols or misleading descriptions of fact in commerce which are likely to cause consumer confusion about their own product, or misrepresents the nature, characteristics or qualities of their own (or another's) product, is civilly liable. USCA §1125 addresses gaps in the Lanham Act, but is not a perfect remedy. Advertisements that present false descriptions of fact are considered deceptive, with no additional evidence required; when an advertisement makes a factual (but misleading) claim, however, evidence of confusion of an average consumer is needed.

Puffing

Puffing (or puffery) is exaggerating a product's worth with meaningless or unsubstantiated terms, language based on opinion rather than fact, or the manipulation of data. Examples include superlatives such as "greatest of all time," "best in town," and "out of this world," or a restaurant's claim that it had "the world's best-tasting food." Puffing is not an illegal form of false advertising, and may be seen as a humorous way to attract consumer attention. Puffing may be used as a defense against charges of deceptive advertising when it is formatted as opinion rather than fact. Omitted, or incomplete, information is characteristic of puffery.

Manipulation of terms

Terms used in advertising may be used imprecisely. Depending on the jurisdiction, "organic" food may not have a clear legal definition; "light" has been used to describe foods low in calories, sugars, carbohydrates, salt, texture, viscosity, or even light in color. Labels such as "all-natural" are frequently used, but essentially meaningless. Before the Family Smoking Prevention and Tobacco Control Act, tobacco companies regularly used terms like low tar, light, ultra-light and mild to imply that such products had less detrimental effects on health. In 2009, the United States banned manufacturers from labeling tobacco products with these terms. When the U.S. United Egg Producers used an "Animal Care Certified" logo on egg cartons, the Better Business Bureau said that it misled consumers by implying a higher level of animal care than was actually the case. In 2010, Kellogg's Rice Krispies cereal claimed that it could improve a child's immunity. The company was forced to discontinue such claims. In 2015, Kellogg's advertised its Kashi products as "all natural" when they contained a number of artificial ingredients; Kellogg's paid $5 million to settle a lawsuit.

Incomplete comparison

"Better" means that one item is superior to another in some way; "best" means that it is superior to all others in some way. Advertisers often fail to specify the basis on which products are compared (such as price, size or quality) and, in the case of "better," what the product is compared to (a competitor's product, an earlier version of their product, or nothing at all). Without defining the terms "better" and "best", they become meaningless. An ad that says, "Our cold medicine is better" could be claiming that it is an improvement over taking nothing at all. Another often-seen example is "better than the leading brand", with a statistic attached; the "leading brand", however, is undefined.

Inconsistent comparison

In an inconsistent comparison, an item is compared with others only in terms of favorable attributes; this conveys the false impression that it is the best of all products overall. One variant is a website which lists competitors whose price for a particular item is higher, ignoring competitors whose price is lower.