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What False Advertising Really Means

May 18, 2022 | Trademark

Advertising is often thought of as a glitzy field of augmented reality. Shiny, colorful products are hawked left and right with promises to make you feel better, sleep better, live better, jump higher and generally conquer the world. Words like “natural,” “sustainable” and “best” attempt to create a positive picture while intentionally providing minimal details as to the actual benefits. Knowing what is true and what is simply clever advertising can be tricky.

Many have heard the phrase “false advertising,” but few know what it means. More important than the definition is the practice; does it even matter if a company uses misleading advertising in an effort to sell? Is the brand protected, no matter what? The legal team at Patterson Thuente discusses the details.

What Constitutes False Advertising?

False advertising, in its simplest terms, is the practice of intentionally publishing or disseminating a false, misleading, or reckless claim in order to aid the sale of goods or services. Common examples of false advertising include:

  • Photo manipulation
  • Hidden fees and surcharges
  • Fillers and oversized packaging
  • Misleading claims of improved health or life
  • Use of terms without a clear definition, e.g. “natural” or “healthy”
  • “Angel dusting” – including minute amounts of beneficial ingredients
  • Comparative advertising without stating the difference between products or neglecting to name other products

In practice, many of these tactics are hard to prove and punish by law. Companies can claim that certain statements are opinions rather than fact, or cite their own data or experience as evidence for the claims.

Is There Any Real Risk?

If advertising practices are misleading enough to be reported and documented, there is indeed risk of disciplinary action. The Federal Trade Commission regulates false advertising through various measures and also enables private litigation through statutes such as the Lanham Act, which prevents trademark infringement.

In the language of the FTC, “When the Federal Trade Commission finds a case of fraud perpetrated on consumers, the agency files actions in federal district court for immediate and permanent orders to stop scams; prevent fraudsters from perpetrating scams in the future; freeze their assets; and get compensation for victims.”

According to their literature, the FTC maintains that advertisements must be truthful, and when appropriate, backed by scientific evidence. The Commission pays special attention to claims regarding health and diet.

As in the case of dietary supplements: “The FTC typically requires claims about the efficacy or safety of dietary supplements to be supported with ‘competent and reliable scientific evidence,’ defined in FTC cases as ‘tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results,'” according to FTC guidance.

The vast majority of the time, when a brand is accused of false advertising, they are issued a warning letter from the FTC mandating that they cease production of the ads in question. It is only after repeated and intentional violations that disciplinary action is taken. In most cases, false advertising suits are brought on by private brands in order to accuse other brands of capturing market share through misleading or deceptive means. For example, POM’s suit of Coca-Cola for marketing a “pomegranate-blueberry” juice blend that was in fact 99.4% apple and grape juice was heard by the U.S. Supreme Court in 2013.

In short, if you are making false or misleading claims about your brand, there is a slight risk you will be punished by governing bodies, but a more substantial risk that another brand will sue.

Develop an Effective Brand Protection Strategy

At Patterson Thuente, we specialize in developing a comprehensive IP strategy catered to the portfolio of your brand. We can help protect your existing work, advise on the publication of future material, assist with filings, handle any infringements on your trademark or branding and clear up any questions. We will make sure things are done right — and your brand is protected.

The experienced IP lawyers at Patterson Thuente are here to help you safeguard your intellectual property, as well as gain industry insights and professional recommendations. Our team of attorneys stands ready to help you with your unique situation. Contact us today: https://www.ptslaw.com/contact/.

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