You are inundated with advertisements every day. You see or hear commercials on TV, the radio, YouTube, and streaming services. You see adverts on the sides of buses, buildings, and billboards
You may not think too much about it, but you expect these advertisements to be true. Unfortunately, you may learn a business lied to you after you purchase a product or service that ends up being different than advertised. But it is not only frustrating when a business’s deception wastes your money; It also is illegal.
If you believe a business is guilty of false advertising, you can take matters into your own hands and file a complaint with an administrative agency or business association. Or, you can consult a local attorney who practices in advertising law and learn whether you have the makings of a lawsuit.
What is false advertising?
False advertising arises when a public marketing material makes a false claim that is more than an or exaggeration.
An exaggeration or boast that a reasonable consumer would know is not meant to be taken literally is known as “puffery.” What constitutes puffery varies from one state to the next. The meaning of this term has been developed by state and federal courts over the years, and not every state uses the same or a similar definition.
In general, you can think of puffery as a statement a reasonable consumer will not rely on when making purchasing decisions.
What are the types of false advertising?
There are many forms of deceptive and false advertising, such as:
- Using misleading and undefined terms, like “light” or “natural”;
- False scientific claims, like “clinically prove”;
- False endorsements by scientific or medical professionals, agencies, or organizations;
- Misleading photos, illustrations, or images;
- Using color and other visual modifications (photoshop) to make a product appear of a better quality than it is;
- Claiming the product contains ingredients that it does not;
- Misrepresenting the quality or quantity of an ingredient;
- Not providing information on additional fees or surcharges;
- Misrepresenting a product’s price;
- Misrepresenting the quality of a product available;
- Misrepresenting the size or quantity of a product;
- Misrepresenting the quality of a product by using claims such as “better” or “stronger” without qualifications; or
- Misrepresenting the availability or terms of a warranty.
Who regulates advertisements?
The Federal Trade Commission (FTC) enforces federal false advertising laws on behalf of consumers. It is granted this power under the Federal Trade Commission Act of 1914.
The FTC requires advertising to be truthful, non-deceptive, and fair. Advertisers must have evidence to back up any claims that are not puffery.
An advertisement is considered deceptive if it misleads reasonable customers under the circumstances and that deception is material to the consumer’s decision regarding whether to buy a product or service.
Your state also may have an agency that regulates advertising.
What can you do about false advertising?
If you uncovered a false advertisement, you may wonder what you can do about it.
“The best thing to do is to reach out to an attorney who practices in this area and explain what the business did and what you think is wrong,” said Jeff Koncius, a partner at Kiesel Law LLP. “It will vary by state whether you have a valid lawsuit.”
However, you may not have a strong lawsuit or want to deal with litigation against a big business. You have other options.
“A consumer is always able to file a complaint with a regulatory agency,” said Mr. Koncius. “If they think there is a larger issue, they can go to the FTC. Sometimes as lawyers, we get calls about instances that we don’t think are going to work out as a lawsuit. We encourage people who feel strongly about the issue to do something at the regulatory level.”
You can report a bad ad to the Better Business Bureau (BBB), file a BBB complaint, or file an FTC complaint. You would provide the BBB or FTC with the evidence you have. They will take over the investigation, and you may have to answer a few more questions down the road. The BBB may reach out to the business to correct the issue. The FTC can fine the businesses for false advertising, and when necessary, file lawsuits to stop the unlawful advertising.
If you are a businessperson with a complaint against another business, you can file a complaint with the BBB’s National Advertising Division. Or, you can sue a competitor for deceptive business practices under the Lanham Act.
When can you sue for false advertising?
Whether or not you can file a lawsuit regarding a false advertisement depends on your state law. An experienced consumer fraud lawyer can analyze whether the business’s claim appears to violate your state’s false advertising laws.
You also may need to consider whether you have suffered an injury.
“Many states, such as California, you have to have lost money or property in order to have standing to sue,” said Mr. Koncius. “You actually had to have bought the product or been affected in the pocket.”