J385: Communication Law Home Page


Deceptive- Examples

Deceptive Advertising - Examples

FTC Advertising Guidelines

Nissan Stanza Challenge

MACE

"The Grossman Method"

Ultima II Research

GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS

Facts for Consumers from the F TC :Indoor Tanning

"Kraft Singles"

FTC, Volvo, SCALI, McCABE, SLOVES, INC. & "Monster Trucks"

Some other recent deceptive language/claims cases

Funeral Industry Practices Trade Regulation Rule

In the Matter of THE AMERICAN TOBACCO COMPANY


Nissan Stanza Challenge

(A) Man: Okay, so I'm thinking about a new car. I'm reading the papers, I'm looking around. I finally decide on a Camry. Or maybe an Accord. That's nice, too. Okay, so either one. But then I hear about this thing that Nissan's doing. The Nissan Stanza Challenge, they call it. What is that? I don't know, but I like a challenge, so I go to a Nissan Dealer to check it out.

Now get this. They tell me that if I buy the Camry or the Accord, they're gonna give me a hundred dollars. Did you understand what I said just then? Nissan will give you a hundred dollars to buy a Toyota or a Honda! So what's the catch, I ask myself, because there has to be a catch. There's no catch! Just test-drive a Nissan Stanza first. No sweat, easiest hundred I ever made, right?

Wrong. See, Nissan knows once you drive a Stanza, with its powerful engine, roomy interior, great handling -- you're not gonna want a Camry. Or an Accord. That's the catch

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Claim: Consumers who test drove a Nissan Stanza and subsequently purchased a Honda Accord or Toyota Camry during the period of the Nissan Stanza Challenge could readily obtain the $ 100 payment specified in the advertisement.

FACTS: Any consumers who test drove a Nissan Stanza and subsequently purchased a Honda Accord or Toyota Camry during the period of the Nissan Stanza Challenge could not readily obtain the $ 100 payment specified in the advertisement. In order to receive the $ 100, the consumer could not purchase the Honda Accord or Toyota Camry on the same day as the test drive, but had to purchase, take delivery, and submit documentary proof of the purchase within seven days after test driving the Nissan Stanza.

RESULT: The representation is false and misleading.


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MACE

* "Aim . . . Spray . . . Walk Away!" [this language is accompanied by three drawings that show a woman successfully using MACE to ward off an attacker and walking away from the scene of attack]>

* "Mace wears off in about 20 minutes without causing permanent harm . . .TIME TO PUT YOU WILL OUT OF HARM'S WAY."

* "'For over twenty years America's police and consumers have depended upon genuine Mace for protection against physical attack. During that time Mace has proven to be the safest, most effective and humane self-protection ever developed. If you're concerned about your safety, I urge you to carry Mace, too.' Patrolman Greg Connor"

* "Accuracy Is Not Essential. JUST AIM . . . SPRAY . . . WALK AWAY! Unique finger-grip design allows you to draw, aim and spray in one easy motion. Any contact within upper torso can be effective. Carry Mace wherever you go. [this language is accompanied by a drawing of human figure with the upper torso target area emphasized with a circle] JUST HIT THE CIRCLE!

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CLAIMS:

A. One spray of MACE will stop an assailant; (FALSE)

B. Any contact with the upper torso by a spray of MACE will stop an C. Use of MACE will instantly stop an assailant. (FALSE)

FAILURE TO DISCLOSE KNOWN MATERIAL FACTS:

1) it may take several seconds for the effects of MACE to begin, and

2) MACE may not be effective on many assailants including those who are armed, enraged, drugged, intoxicated, or otherwise desensitized.


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"The Grossman Method"

* "STOP SMOKING IN JUST 3 HOURS FLAT! WITHOUT ANXIETY, IRRITABILITY OR WEIGHT GAIN! . . .The Grossman Method of Hypnosis has helped over 300,000 smokers during the past 15 years. Of those motivated smokers who join us, up to 98% will throw away their cigarettes and stop smoking by seminar's end. I personally guarantee it . . . This is the ORIGINAL STOP SMOKING IN THREE HOURS

FLAT SEMINAR developed and presented by Dr. Kenneth Grossman. Over the years, many others have tried to imitate it, but they simply cannot duplicate it.

* . . . . ELIMINATES YOUR DESIRE FOR CIGARETTES . . .

* LOSE WEIGHT FREE . . . Now you can use the Grossman

Method of Hypnosis to help you lose weight. . . . Lose weight the quick, safe and healthy way. . . . 'The Weight Loss Program is terrific. In two months I've lost 47 pounds. I went from a size 18 to a size 12! It's been a great summer at the beach.' Gerri Cheek Hanover, MD.

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Claims:

* Participants ...typically are cured of smoking addiction and permanently abstain from smoking cigarettes.

reasonable basis

* Participants ... are cured...without experiencing irritability, anxiety or weight gain.

reasonable basis

* Over three hundred thousand consumers have permanently quit smoking as a result of attending respondents'...seminar over the last fifteen years.

reasonable basis

* Up to or over 98% of consumers attending respondents' single-session group hypnosis seminar have quit smoking.

surveys

* Respondents' single-session group hypnosis seminar is more efficacious for smoking cessation than other stop-smoking methods.

reasonable basis


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Ultima II Research

* "Now, thanks to Ultima II Research, no woman has to resign herself to unattractive ripples, bumpy texture, and slackness caused by cellulite."

* "Massaging Anti-cellulite body complex into the skin attacks your cellulite problems two ways: first, it increases skin circulation to help disperse toxins and excess water that contribute to cellulite pockets, and second, it builds sub-skin tissue strength and tone for smoother support."

* "You'll see results after just seven to ten days of daily use."

* "While you can't prevent biological aging, you can prevent Photoaging. That's because now Ultima II Research Laboratories have developed a product designed to prevent Photoaging. This revolutionary product acts as a shield for your skin."

* "It's called PhotoAging Shield and it's so protective it actually intercepts damaging light waves before they penetrate your skin."

CLAIMS:

* Anti-cellulite body complex significantly reduces cellulite;

* Anti-cellulite body complex reduces skin's bumpy texture, ripples or slackness caused by cellulite;

* Anti-cellulite body complex helps disperse toxins and excess water from areas where cellulite appears;

* Anti-cellulite body complex increases sub-skin tissue strength and tone;

* PhotoAging Shield blocks all of the harmful rays which cause photoaging.

In truth and in fact, respondents did not possess and rely upon a reasonable basis for the representations. (Consent decree)


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Indoor Tanning -- March 1993

Facts for Consumers from the Federal Trade Commission

"Tan indoors with absolutely no harmful side effects"

"No burning, no drying, and no sun damage"

"Unlike the sun, indoor tanning will not cause skin cancer or skin aging"


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GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS

16 CFR PART 260

"Recyclable"

* A box of aluminum foil is labeled with the claim "recyclable," without further elaboration. Unless the type of product, surrounding language, or other context of the phrase establishes whether the claim refers to the foil or the box, the claim is deceptive if any part of either the box or the foil, other than minor, incidental components, cannot be recycled.

* A soft drink bottle is labeled "recycled." The bottle is made entirely from recycled materials, but the bottle cap is not. Because reasonable consumers are likely to consider the bottle cap to be a minor, incidental component of the package, the claim is not deceptive. Similarly, it would not be deceptive to label a shopping bag "recycled" where the bag is made entirely of recycled material but the easily detachable handle, an incidental component, is not.

* A trash bag is labeled "recyclable" without qualification. Because trash bags will ordinarily not be separated out from other trash at the landfill or incinerator for recycling, they arehighly unlikely to be used again for any purpose. Even if the bag is technically capable of being recycled, the claim is deceptive since it asserts an environmental benefit where no significant or meaningful benefit exists.

Example 3: A paper grocery sack is labeled "reusable." The sack can be brought back to the store and reused for carrying groceries but will fall apart after two or three reuses, on average. Because reasonable consumers are unlikely to assume that a paper grocery sack is durable, the unqualified claim does not overstate the environmental benefit conveyed to consumers. The claim is not deceptive and does not need to be qualified to indicate the limited reuse of the sack.

Degradable/Biodegradable/Photodegradable

(1) The product or package's ability to degrade in the environment where it is customarily disposed; and (2) The rate and extent of degradation.

An unqualified claim that a product or package is degradable, biodegradable or photodegradable should be substantiated by competent and reliable scientific evidence that the entire product or package will completely break down and return to nature, i.e., decompose into elements found in nature within reasonable short period of time after customary disposal.

* A trash bag is marketed as "degradable," which no qualification or other disclosure. The marketer relies on soil burial tests to show that the product will decompose in the presence of water and oxygen. The trash bags are customarily disposed of in incineration facilities or at sanitary landfills that are managed in a way that inhibits degradation by minimizing moisture and oxygen. Degradation will be irrelevant for those trash bags that are incinerated and, for those disposed of in landfills, the marketer does not possess adequate substantiation that the bags will degrade in a reasonably short period of time in a landfill. The claim is therefore deceptive.

* A commercial agricultural plastic mulch film is advertised as "Photodegradable" and qualified with the phrase, "Will break down into small pieces if left uncovered in sunlight." The claim is supported by competent and reliable scientific evidence that the product will break down in a reasonably short period of time after being exposed to sunlight and into sufficiently small pieces to become part of the soil. The qualified claim is not deceptive.

* A soap or shampoo product is advertised as "biodegradeable," with no qualification or other disclosure. The manufacturer has competent and reliable scientific evidence demonstrating that the product, which is customarily disposed of in sewage systems, will break down and decompose into elements found in nature in a short period of time. The claim is not deceptive.


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Stouffers/Lean Cuisine

"skimped" on sodium..."always less than 1 gram*"

"Stouffer's recipes use only the finest ingredients at their natural peak of perfection, combined in exciting and imaginative ways."

"Lean. (a smart, intelligent, sensible way to eat.)"

* refers consumer to note which explains that 1 gram equals 1000 milligrams.

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FTC: "this ad has failed to disclose adequately that 1 gram is equivilant to 1000 milligrams which is the commonly used unit of measure...thus the reasonable consumer might underestimate the level of salt...especially since the company claimed the entrees were low in salt.

Similarly, the headline in the Lean on Lean Cuisine ad evokes sensible eating.


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Kraft Singles American Pasteurized Process Cheese Food ("Kraft Singles")

The challenged advertisements:

"Skimp, " and "Class Picture/5 ounce" (or "Class Picture/II") ads, which were developed as part of Kraft's overall "Five Ounces of Milk" advertising campaign.

Most advertisements in the "Five Ounces of Milk" campaign focused on the theme that a slice of Kraft Singles has five ounces of milk as an ingredient, while imitation slices use very little milk, or are made predominantly from vegetable oil and water.

The ALJ's findings and conclusions on this issue.

Milk equivalency claim: A 3/4-ounce slice of Kraft Singles has 70 percent, not 100 percent, of the calcium of five ounces of whole milk, by Kraft's own analysis and admission.

Imitation superiority claim: Kraft Singles contain, on average, 15 percent of the U.S. Recommended Daily Allowance ("RDA") of calcium per ounce, and that the vast majority of imitation slices sold in the United States during the relevant time period also contained 15 percent or more of the U.S. RDA of calcium per ounce.


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FTC, Volvo, SCALI, McCABE, SLOVES, INC. & "Monster Trucks

Volvo advertisements depict a so-called "monster truck" event, in which an oversized pickup truck drives over a row of automobiles. In the advertisements, the "monster truck" is shown crushing all of the cars with the exception of a Volvo 240 station wagon, which remains intact.

The ad represented, directly or by implication, that the monster truck event included unaltered cars, which had been subjected to equal treatment, and that the results shown accurately represent the comparative performance of actual, unaltered Volvos and competing cars under the depicted conditions.

In truth and in fact, the monster truck event did not include unaltered cars subjected to equal treatment and the results shown did not accurately represent the comparative performance of actual, unaltered Volvos and competing cars under the depicted conditions. Among other things, certain of the Volvos used in the demonstration were structurally reinforced, certain structural supports in the competing cars were severed, and the Volvos were subjected to less severe treatment than the competing cars by the monster truck. Therefore, the representations set forth in PARAGRAPH FIVE were, and are, false and misleading.

Volvo and the advertising agency were both held liable for the deceptive ad. The FTC explicited stated that an agency is responsible for deceptive claims unless it can show that it had no knowledge nor reason to know that substantiation for the ad's claim did not exist or was not credible; that the agency "neither knew nor had reason to know that the demonstration, experiment or test did not prove, demonstrate or confirm the representation. "


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Some other recent deceptive language/claims cases:

FDA - Citrus Hill Orange Juice

Language Used in Ads:

"Fresh Choice"

"pure squeezed"

"100 % pure"

"fresh"

"we pick our oranges at the peak of ripeness, then we hurry to squeeze them before they loose their freshness"

"we don't add anything"

"fresh" cannot be applied to heated or chemically processed foods; can't be used to describe commercially processed orange juice, i.e. concentrate

FDA - Ragu:

Agreed to stop using "fresh" in its heat-processed line of pasta sauces.

BATF - Coors

"brewed with pure Rocky Mountain spring water" - a material claim that can not be made about beer made with non-"Rocky Mountain spring water."

"fresh from the Rockies taste" - An image claim.

FTC-Pompeian Olive Oil

"medical studies show that olive oil can help reduce your body's level of cholestrol"

"receive health benefits no vegtable oil can ever give you"

(FTC charged that Pompeian Inc. had no reasonalble basis for health claims.)

FTC-Nestle/Coffee Mate:

"it isn't just for coffee anymore! Try it on fruit, cereal or in your favorite recipe. It's low in fat." (The ad does not tell the consumer the context for comparision. Coffee Mate is low in fat compared to _________?)


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Funeral Industry Practices Trade Regulation Rule

An example of a TRR. This is an amendment to the original TRR. The example only includes the original provisions, not the amendments

Final amended trade regulation rule

SUMMARY: The Federal Trade Commission issues final amendments to the Funeral Industry Practices Trade Regulation Rule (hereafter "the Rule" or "the original Rule"), pursuant to the review mandated by @ 453.10 of the Rule. That provision required that the Commission initiate a rulemaking amendment proceeding no later than four years after the effective date of the Rule to determine whether the rule should be amended or terminated.

EFFECTIVE DATE: The amended Rule will become effective on July 19, 1994.

ADDRESSES: Requests for copies of the amended Rule and the Statement of The Commission promulgated the original Rule on September 24, 1982, making it fully effective on April 30, 1984. n2 The Commission's decision to promulgate the Rule was appealed, and was subsequently affirmed in Harry & Bryant Co. v. FTC.

The Funeral Rule declares it an unfair or deceptive act or practice for funeral providers to: (1) fail to furnish price information to funeral consumers; (2) require consumers to purchase items they do not desire to buy; and (3) embalm deceased human remains for a fee without authorization. The Rule further declares it a deceptive practice for funeral providers to

misrepresent: (1) the necessity for embalming, caskets for cremation, and grave vaults or grave liners; (2) legal and cemetery requirements; (3) preservation and protection capabilities of funeral goods and services; and (4) cash advance charges for items arranged for by the funeral provider on the consumer's behalf.

n2 The Rule had two effective dates. Those portions of the Rule that

prohibit certain oral or written representations became effective on January 1, 1984. 48 FR 45537 (Oct. 6, 1983). The remainder of the Rule-the portions

imposing affirmative obligations on funeral providers-became effective on April 30, 1984. Id. The effective date of @ 453.3(b)(1)(ii) of the Rule was changed from January 1, 1984 to April 30, 1984. 49 FR 564 (Jan. 5, 1984).


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Advertising Substantiation:

In the Matter of THE AMERICAN TOBACCO COMPANY

,

1994 FTC LEXIS 189, August 31, 1994, Consent date

COMPLAINT

The Federal Trade Commission, having reason to believe that The American Tobacco Company, a corporation ("respondent"), has violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest...

PARAGRAPH FOUR: Respondent has disseminated or has caused to be disseminated advertisements for its Carlton brand cigarettes, including, but not necessarily limited to, the attached Exhibits A-C, which depict ten packs of Carlton brand cigarettes and single packs of other brands of cigarettes, with the tar and nicotine ratings for Carlton and the other brands of cigarettes under

each pack. Exhibits A-C contain the following statements:

A. "10 packs of Carlton have less tar than 1 pack of these brands." (Exhibit A.)

B. "A WHOLE CARTON OF CARLTON HAS LESS TAR THAN 1 PACK OF THESE BRANDS." (Exhibit B.)

C. "10 to 1. 10 packs of Carlton have less tar than 1 pack of these

brands." (Exhibit C.)

PARAGRAPH FIVE: Through the presentation of the tar of its Carlton product as a numerical multiple, fraction or ratio of the tar of other brands of

cigarettes, and/or the visual depiction of ten packs or a carton of Carlton

cigarettes versus one pack of the other brands in the advertisements referred to in PARAGRAPH FOUR, including but not necessarily limited to the advertisements attached as Exhibits A-C, respondent has represented, directly or by implication, that consumers will get less tar by smoking ten packs of Carlton brand cigarettes than by smoking a single pack of the other brands of cigarettes depicted in the ads, which are rated as having more than 10 mg. of tar.

PARAGRAPH SIX: In truth and in fact, consumers will not necessarily get less tar by smoking ten packs of Carlton brand cigarettes than by smoking a single pack of the other brands of cigarettes depicted in the ads. Although the cigarettes depicted are rated as having more than 10 mg. of tar, those ratings are obtained through smoking machine tests that do not reflect actual smoking, in part because the machines do not take into account such behavior as

compensatory smoking. Therefore, the representation set forth in PARAGRAPH FIVE was, and is, false and misleading.

PARAGRAPH SEVEN: Through the presentation of the tar of its Carlton product as a numerical multiple, fraction or ratio of the tar of other brands of

cigarettes, and/or the visual depiction of ten packs or a carton of Carlton

cigarettes versus one pack of the other brands in the advertisements referred to in PARAGRAPH FOUR, including but not necessarily limited to the advertisements attached as Exhibits A-C, respondent has represented, directly or by

implication, that at the time it made the representation set forth in PARAGRAPH FIVE, respondent possessed and relied upon a reasonable basis that substantiated that representation.

PARAGRAPH EIGHT: In truth and in fact, at the time it made the representation set forth in PARAGRAPH FIVE, respondent did not possess and rely upon a

reasonable basis that substantiated such representation. Therefore, the

representation set forth in PARAGRAPH SEVEN was, and is, false and misleading.

PARAGRAPH NINE: The acts and practices of respondent as alleged in this

complaint constitute unfair or deceptive acts or practices in or affecting

commerce in violation of Section 5(a) of the Federal Trade Commission Act.


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