Do you ever wonder if there really is such a thing as the false advertising law anymore? I mean, you know, there’s Mighty Boosh at all on the Mighty Boosh. What gives? We know we’re lied to a million times a year in advertising so why aren’t there more false advertising lawsuits?
This is because false advertising laws commit the sin of allowing exaggeration. There must be a finite claim-fact discrepancy rather than an opinion statement. Many times you will see a product advertised as the best such and such in the world for such and such a need. Well, you and I and everyone else knows that this is pure hyperbole. Prove it? Why bother. We know the lie when we recognize it. What is really at stake in the modern 21st Century marketing game is misleading advertising rather than blatant fraudulent advertising.
Here’s the skinny: the statutes in place against false advertising only come into play when a positively untrue statement is made or implied. If McDonald’s says their hamburgers will make you lose weight…well, that’s a clear case of false advertising. If a drug company make a claim that their pill is a cure for depression…well, you might be redneck if you believe it. The drug may very well successful treat some symptoms of depression in some users, but a care? Nah. That would be like saying that astrology can cure the cancer.
The problem, as anyone watching commercials knows, is that the gov-mint allows Big Business to advertise with exaggerated claims that skirt around the big lie. And that is why products you buy that don’t live up to the advertised claim can’t be returned in a court of law when you successfully sue for false advertising.
How many times have you stopped a red light and there on the sidewalk was some poor guy holding up a sign that said some business was going out of business and must sell everything. Then you drive by two weeks later and the business is still in business and the guy on the side of the road is still carrying a sign that says the company is going out of business? Well, the thing is that if a company announces it is going out of business, there is no rule on the books providing them a time frame. They can spend the next thirty years claiming they are having a going out of business sale and–technically–it’s the truth.
Where false advertising becomes less slippery is when the suits and pencil stains in the legal department don’t do their job well enough and advertising slips out that contains patently untrue statements. Let’s say that a company was advertising a special for $29.99 available to everybody, but in reality if you meet this or that exception the $29.99 special is actually going to wind up costing $49.99. Most of the time that information is listed down at the bottom in small print. It was up to you to freeze-frame the picture, get a microscope and read it. Ah, but if for some reason the small print was left off the commercial and you show up for your $29.99 special only to learn certain exceptions means it will actually cost $39.99…well, that, sir, is a false advertising and grounds for a class action lawsuit.
It has to be a class action lawsuit because the bigger suits and the bigger pencil stains in Congress decided that individuals don’t have the right to sue for false advertising. The Federal Trade Commission will take on your compliant and investigate and file a suit on your behalf and the behalf of others who were harmed by the false advertising.
And that’s the truth.