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I've recently come across an advertisement online of a product that stated

"Most people have heard of the horror of [bad thing] or even [worse thing]. Protect yourself with [our product] today!"

A layman would interpret this as "Our product protects you against these things", although there has not been an explicit claim that the product would actually protect against these things. For the sake of the argument, let us assume that any expert in the field would instantly recognize that the product could not possibly protect against these things - such as for example a better car stereo would not protect against car accidents or scratches in the paint.

Would it still be legal in the US and/or the EU to make advertisement that is intended to mislead consumers, without ever making explicit wrongful statements?

MechMK1
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    I'd argue that the advertisement explicitly claims to protect against the bad and worse things. You can't interpret sentences out of context the way you're suggesting. – Ross Ridge Dec 08 '20 at 04:00
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    If it was illegal, there would be no homeopathic "medicine", neither any essential oils around, but the fact that they are a multi-billion industry shows that it is not illegal to market them like this, or at least not as illegal to completely stop them. They often get away with it by labeling them as "dietary supplement", and only hinting at it in advertising (and using word-of-mouth on social media) to imply they are "medicine". – vsz Dec 08 '20 at 05:41
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    The UK has specific laws against certain kinds of advertising. This includes cancer treatments, for example. – Richard Dec 08 '20 at 08:33
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    @Richard : this might explain why alternative medicine has proliferated into MLM schemes so much. The company is not allowed to claim that their herbal placebo cures cancer, but it's easy to circumvent that restriction by having people in the MLM scheme tell such things privately to their friends, and having such misinformation naturally spread virally through social media. – vsz Dec 08 '20 at 10:12
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    @vsz: The thing with homeopathic medicine is not the absence of claims that it protects againt X or cures Y (they very often claim stuff like that), but rather the subsequent claims of (allegedly) not being able to prove that it doesn't protect against X or cure Y. That's not the same thing as OP was asking about - though it is an alternative approach on how to achieve the goal OP is (presumably hypothetically) trying to achieve, i.e. selling their product legally but fraudulently. – Flater Dec 08 '20 at 11:24
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    Advertisers are experts in making empty claims that appear to say something but when read literally provide exactly zero information. Consider a claim like " could save you up to 15% or more on car insurance" So it could save you less than 15%, or exactly 15%, or more than 15%, or it could simply not save you anything. That's literally all the numbers. This is a similarly empty statement. – Darrel Hoffman Dec 08 '20 at 15:04
  • "HEAD ON: APPLY DIRECTLY TO THE FOREHEAD", a homeopathic cure for headaches that was literally just a tube of wax with no active ingredients, never claimed to cure headaches in any of their commercials. They did on their packaging, though. – BlueRaja - Danny Pflughoeft Dec 08 '20 at 17:02
  • @DarrelHoffman or it could save you -15% on insurance! – MonkeyZeus Dec 08 '20 at 19:57
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    This would be much better split into two questions, one for each jurisdiction, so that each can have its answer. – DJClayworth Dec 08 '20 at 22:13
  • But you were making an explicit claim.

    However innocently - or here, not - you were telling your audience "Protect yourself with [our product] today!"

    Which part of "make advertisement that is intended to mislead consumers" is hard for you?

    If you could explain how the judge would not insist your wording was explicitly claiming "our product will protect you against…", it might be worth paying for legal advice on how to present that view in court.

    Until then please, don't waste your money.

     – Robbie Goodwin Dec 09 '20 at 23:26
  • "No snakes were harmed in the making of this oil" therefore it is 100% beneficial to snakes ;) – Tetsujin Dec 10 '20 at 18:09

5 Answers5

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In the EU this could constitute a misleading advertisement under Article 3 of the Misleading and comparative advertising directive:

In determining whether advertising is misleading, account shall be taken of all its features, and in particular of any information it contains concerning:

(a) the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services;

Of course, a judge will have to decide whether that particular phrasing constitutes "information about the results to be expected from their use", but there's a high chance they will. Note that it is sufficient for the results to be reasonably expected, not just "explicitly stated" or "guaranteed".

Dmitry Grigoryev
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Specifically it can be legal in the United States, where commercial speech (speech made in order to elicit business transactions) is not as strongly protected as political speech (speech containing ideas and beliefs). As a general rule, you must advertise your product truthfully, but that offers a lot of wiggle room that as "exact truth" is perfectly fine as is boastful and outlandish statements.

For example, lets start with one of the most fun ad campaigns the old "9 out of 10" experts slogans. These are true, but often the methodology is misleading. While you expect 90% of all experts would say the same thing, often the survey will do numerous panels until they find one of the exact ratio... and that's if they are being semi-honest. Most will just take the first 9 experts who agree with them and one of the many more who don't agree and boom, here's your panel. And then the question might be overly narrow. The first advert campaign to use this was for Trident gum and specifically asked 10 doctors "Which gum would dentists recommend to patients who want to chew gum? 9 out of 10 say Trident!" Note the bolded phrase. None of the dentists they found would recommend chewing gum... but if you're going to do it anyway, chew Trident (the tenth doctor actually answered that he wouldn't recommend patients chew gum at all... which technically is true in that he's not recommending Trident... but he's not recommending Bubble Yum either.).

In food ads, you have to use the actual food product in your ad, not a fake. But you can apply all manner of toxic chemicals to the cooked Big Mac to make it look like the most perfect burger ever made, a feast fit for the gods, rather than the typical greasy mess of meat and condiments slapped in a sesame seed bun. So long as that is a Big Mac at the core of the plastic coating making it look oh so tempting. Happens in just about every food commercial.

Perhaps the most interesting treatment of the product that goes straight to your question is the homeotherapy product known as Head On, which the public will tell you is used to cure headaches... but the product will never say that (largely because per U.S. law, you can't advertise a product as a cure for a medical ailment unless the FDA specifically clears the products use for treating that specific ailment.). Head On's advertisement was an annoyingly repeated list of instructions of how to use the product: "Head On, apply directly to the forehead. Head On, apply directly to the forehead (repeats some more)." This is all true, as the instructions for the product's use are stated correctly... it's just that they don't say what will happen when you apply it directly to the forehead, letting the viewer assume that it cures headaches... instead of saying that legally speaking, the FDA only clears them to say it legally cures you of the amount of change in your wallet that they will sell a stick of Head On to you in the store (i.e. bupkis). The headache relief may be related to the application of the product... or the distress of doing that motion to your head... or the placebo effect of thinking it will help somehow... or the fact that mild headaches do pass over time... or the fact that you put your boot through the TV when their annoying advert came on...

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hszmv
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    Oh, it's not just Head On doing that, it's the entire dietary supplement industry (or at least, the vast majority of them, anyway). It's said that Americans have the most expensive urine in the world because of all the unnecessary vitamins etc. that we consume. – Kevin Dec 08 '20 at 00:25
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    @Kevin: And here I am, just pissing it away! LOL... but to be fair, Head On was selected for just how blatant it's commercials were as well as how close it is to an example of what the OP was asking was even possible. – hszmv Dec 08 '20 at 12:10
  • Is there any kind of "reasonable person" exception? E.g. if Netflix advertised that watching "The Crown" would protect you from COVID-19, no reasonable person would believe that. – Barmar Dec 08 '20 at 16:21
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    @Barmar: If I'm spending my free time binge watching a Netflix series, I'm more likely than not in my own home and not going to public spaces where I'm more likely to get Covid... so it's kinda protection...+ – hszmv Dec 08 '20 at 16:45
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    @Barmar: But yeah, there are exemptions for clear exagerations... it's just medicine ads in the U.S. are increadibly regulated. There are however no end of humerous ads and ads that poke fun at each other. The 9 out of 10 doctors was spoofed almost immediately by an ad claiming 9 out 10 doctors recomend eating Chinese Food... and showing that the pannel was of 9 Asian men and one Caucasion man. Another one I like to throw in is 9 out of 10 doctors think the 4th doctor's scarf is too long and stupid. – hszmv Dec 08 '20 at 16:48
  • Another misleading panel of dentists for advertising Colgate. It's interesting because it's a different way of messing with the numbers. – TRiG Dec 08 '20 at 17:28
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    I recall that the dentists were allowed to recommend multiple toothpaste brands... so they recommended all of them, i.e., they recommend using toothpaste, and the brand was virtually irrelevant. – Rebecca J. Stones Dec 09 '20 at 06:52
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    "You could save up to 15% or more." <- this statement communicates no useful information whatsoever. – GalacticCowboy Dec 09 '20 at 23:44
  • @GalacticCowboy: Well, it does, if you parse it. The ad slogan says it's possible that you could save some money and that some people who save money will save money that is >= 15% of what they currently pay while other people will save < 15%. Also 0% and -x% are valid percents... can't save money on care insurance if you're buying car insurance for the first time in your life, you know. – hszmv Dec 10 '20 at 13:07
  • Just to clarify my statement on exageration exemptions: One may not find a certain ceral "Magically Delishous" or be reminded every morning that whoever put Marshmellows in their 5 year old's ceral may have made it magically delishious... but that was some black magic that cast that spell. Similarly, while I would not eat them when I was 5 because I thought it would happen to me, no REASONABLE person would believe that eating Gushers candies would cause your head to turn into a giant Strawberry. – hszmv Dec 10 '20 at 13:15
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    @GalacticCowboy I wonder why they say 15% instead of 100%. – user253751 Dec 10 '20 at 18:14
  • @user253751 Because they want their not-lies to be believable. "We might decide to give you insurance for free" is true, but so unlikely that most people would consider it an empty statement. – Patrick M Dec 10 '20 at 22:14
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This would be illegal in

The Australian Consumer Protection law prohibits “misleading and deceptive conduct in trade or commerce”. This statement is misleading and probably deceptive.

When deciding if conduct is misleading or deceptive, or likely to mislead or deceive, the most important question to ask is whether the overall impression created by your conduct is false or inaccurate.

It is possible to be 100% truthful and still be misleading:

Does your dog bite?

No.

[Pats dog, gets bitten] You said your dog didn’t bite!

That is not my dog.

Dale M
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  • This would be illegal in NZ. (IANAL) – Russell McMahon Dec 08 '20 at 19:30
  • I didn't even know markdown for tags existed on [tag:stackexchange]! – yeah22 Dec 10 '20 at 05:48
  • What if an ad invites some specific category of people to try a product, without saying anything about why the product would benefit them in particular, e.g. "If you have trouble with tinnitus, you'll love our flax-seed-enhanced chocolate"? If surveys that ask people whether they like the product, and any conditions they have, reveal that 80% of respondents overall love the taste of the product, but among those with tinnitus 88% love it without expecting it to do anything to help with their condition, would the aforementioned ad be deceptive? – supercat Dec 10 '20 at 17:14
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hszmv answer is correct for the US.

However there are very specific rulesets in the US and this depends on the type of product/industry you are in.

For example in food the word "natural" can be used with certain restrictions for some food types and for other food types it may have more restrictions. Same for "sugar-free" or "fat-free" - which may contain sugar or fat.

Other types of advertising that I worked on was beer and hardware. I was presented fact sheets at the agency on terms/phrases we were allowed and not allowed to say. So without getting into a 100 different examples... You are at the mercy of the FDA and other regulatory agencies and at the mercy of interest groups and what they have lobbied to include and exclude into product speech and the rules around them.

blankip
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You have to take into account who the target audience is. If it's marketed towards average people, then the benchmark is that of an average consumer, as this term is used for example in this Directive. So the judge has to put themself in the position of a layperson and determine how they would understand this advertisement and whether they would make a connection. Now, a linguist might argue that the connection isn't necessarily implied if analysed grammatically or an expert in the field wouldn't make the connection, but that's not important, what's important is the average consumer faced with your advertisement.

Ryan M
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stackzebra
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