Product Enhancement, Disclaimers, and Truth-In-Advertising
Advertising and disclaimers often go hand and hand these days, but are disclaimers, even good ones, enough to prevent accusations of deceptive advertising?
Well, that depends.
Will a reasonable consumer interpret a message in the ad beyond the words of the disclaimer? If challenged, even truthful advertising claims may not stand up to a careful examination of the context in which the claims are made. In addition to ample claims substantiation, disclaimers that are well written and properly placed will offer strong protection. Complete avoidance of misleading consumers through the use of deceptive statements or images is the best choice.
In the cosmetics world, advertisers have been selling illusion and dreams for years and have been airbrushing enhanced beauty long before Adobe created Photoshop. While the money continues to roll in, people are getting tired of the dishonesty; competition remains as fierce as ever and government agencies are calling for more transparency and greater truth-in-advertising.
The National Advertising Division (“NAD”) recently closed an inquiry into allegations that certain in-store advertising by L’Oreal, USA was deceptive in spite of conspicuous disclaimers placed on the ads. L’Oreal advised the agency that the company had permanently discontinued the ads prior to the inquiry that stemmed from charges made by L’Oreal competitor, Proctor & Gamble. In turn, the NAD, which is administered by the Council of Better Businesses Bureau, determined that L’Oreal had acted properly and closed the inquiry because they lacked jurisdiction over claims that had been permanently discontinued prior to the commencement of an inquiry.
According to NAD, L’Oreal’s disclaimer that "Lashes were enhanced in post-production” was not enough to dispel the implication that long and lush lashes, such as those on the beautiful and famous models, were possible for those consumers who used their product.
L’Oreal Paris has faced similar complaints in the past. The Advertising Standards Agency (“ASA”) in Britain has banned several L’Oreal product advertisements in the last few years based on deceptive advertising. ASA chief executive, Guy Parker, said that the L'Oreal images were banned because the company was unable to show exactly how much retouching had been done to the ad, which is a requirement for cosmetics advertisements.
Britain’s Minister for Women and Equalities, Jo Swinson, complained that some of the company’s products were "not representative of the results the products could achieve.”
She said, "There's a problem out there with body image and confidence. The way excessive retouching has become pervasive in our society is contributing to that problem."
That view is shared in the United States. Arizona Representative, Katie Hobbs, introduced a bill in that state last year that sought to require all advertisers who used photoshopped images to put a disclaimer on the ads alerting customers that "Postproduction techniques were made to alter the appearance in this advertisement. When using this product, similar results may not be achieved."
The bill did not pass, but Hobbs did achieve her objective. The bill was modeled after laws in the United Kingdom, she said. "We just wanted to bring it to the table and start a discussion. We need to bring attention to these body-image issues, especially with young girls. Girls need to know that they don't have to look perfect."
Federal and state laws govern the use of advertising claims and are enforced on the federal level by the Federal Trade Commission (“FTC”) under the FTC Act. Deceptive advertising can also lead to class action lawsuits against the advertiser. In fact, disclaimers such as the one L’Oreal used, may even highlight the deception for the competition or disgruntled consumers to take advantage.
Disclosures are necessary if an advertisement's express or implied claims could be misleading. In determining whether a claim is deceptive, the FTC examines the overall claim for “implied” as well as “express” claims. They look at the overall context of the advertisement, including both words and pictures.
The FTC requires that claims are substantiated, with sufficient evidence and proof before ads are run. Disclaimers cannot correct false claims.
Claims may not:
• Mislead consumers.
• Affect consumers' behavior or decisions about the product or service.
Disclosures must:
• Give qualifying information so that a claim is not misunderstood.
• Be “clear and conspicuous” so that consumers can notice and understand it.
Advertising is not just about selling things to people that they don’t need. Ads reflect a nation, the people who live there and how they think and feel. It’s about ethics. When asked, consumers will attest to the value they place on trust. That should bring it full circle to the advertisers, to responsibility and honoring the trust that individuals, people place in a company when they purchase a product.
© 2013 Cliclaw.com
(Image Credit: iStock Photo)
This article is for information purposes only. It is not intended to be and should not be relied on as legal advice for any particular matter.