literally true deception. deceptive ads a statement (or omission) that is likely to mislead a...

Literally True Deception

Deceptive Ads

A statement (or omission) that is

Likely to mislead

A reasonable consumer

About a material fact.

What’s material?

FTC Analysis Likely to affect consumer choice If false, injury is likely All significant health and safety claims

Other evidence Cost compared to competing product Reliable consumer survey data Credible testimony

Who’s the reasonable consumer?

General populace

Target audience Children Elderly Terminally ill

Evidence Expert testimony Consumer data

What’s misleading?

“The world’s best pizza”

Sunscreen “Contains Aloe Vera”

“3 out of 4 doctors recommend”

“Approved by the American Institute of Science”

Gainesburger Dog Food, 1960s

FTC found that this ad misled consumers . . . Why?

AT&T vs. Verizon WirelessU.S. District Court for the Northern District of Georgia, Atlanta Div.AT&T requests a TRO against use of the “maps”

AT&T Claims

Consumers interpret the maps as “no service”

3G is not a different kind of service, it’s just faster

The total experience of the ad leaves the impression that AT&T service is “out of touch”

Mall intercept study 53% said AT&T has no coverage in blank space 30% in “control” agreed

Verizon’s Responses

The ads are literally true.

The ads are not misleading.

AT&T’s “evidence” only addresses one ad.

AT&T’s “evidence” is not valid. Survey not limited to Smartphone users Questions poorly designed Control ad inconsistently designed