Elements Of Deceptive Avertisements Essay, Research Paper

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.