FREE ESSAY ON ELEMENTS OF DECEPTIVE AVERTISEMENTS

ELEMENTS OF DECEPTIVE AVERTISEMENTS

The Elements of Deceptiveness Law
Ivan Preston is the author of this article about what falsities the law permits and what
it prohibits. He starts off by looking at the method of regulating advertising claims,
and then Preston looks at the Aspercreme case.
First, Preston tells us that the Federal Trade Commission's (FTC) key regulators are its
commissioners and judges. Other regulators are the federal trial judges who try private
suits. These are called Lanham cases and they are private suits brought against each
other by advertisers. Most advertisers use the FTC.
The regulators regulate deceptive, or false, advertising. Preston defines an act as
legally deceptive when it misleads people, or at least is likely to. Regulators are first
supposed to show the advertising that was run and what it says as evidence. Next, they
look at what the public understood the advertisement to mean. If that matches what the as
was meant to say, then there is no problem. However, if the public opinion contradicts
what the company says the ad is supposed to depict, the regulators have the authority to
prohibit it. Also, if the regulators find any glitches in the advertisement, for
instance, portraying false information, they have the right to prohibit it. Up to now,
the advertiser doesn't pay any fees, however, if they continue to run the ad, they can be
fined for violating their order.
Preston talks next about the quantity of people that have to be deceived in order to
consider an ad to be unlawfully deceptive. According to the FTC, it's 20-25 percent, but
according to Lanham cases, it's 15 percent. The purpose of having these numbers so low is
that it prevents the possible deception of any large minority group to stand for the
public interest. Preston then talks about the reasonable person standard. This says that
citizens must do what a sensible, rational person should do, and if they don't, they
won't get any protection from the law. However, this implies that at least 51 percent of
the people would have to consider an ad unreasonable, while the FTC only requires 20-25
percent. The FTC takes a different approach, which is the ignorant person standard. They
follow this because, in today's society, cars and electronic items are so complex that
the reasonable standard is actually unreasonable. A lot of people are just uninformed,
which is what Preston uses to define ignorant. Advertisements may depict something other
than they are supposed to because certain people just may not know enough information to
understand what is actually being said.
Preston also talks about implied claims, and that some ads make us interpret words and
pictures. Some people may interpret these in different ways than the advertiser meant
them to. He says that the only actual way to see what is depicted is to look in the
consumer's head, not in the ad.
The final topic that Preston discusses is the Aspercreme case. When people heard the name
"Aspercreme," they thought of aspirin in the form of a creamy substance. However, there
is no aspirin in Aspercreme. The creator claimed that it was as equally effective as
aspirin. It was a phony product, because it wasn't as effective. The maker claimed that
it performed a variety of tests on patients, however the FTC didn't accept any of them as
being scientifically adequate. Aspercreme is still available for sale, on one condition.
That is that it must state clearly on its package that Aspercreme does not contain
aspirin.