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Examining the elements of deceptive advertising

On Behalf of | Jun 9, 2017 | Business Torts

Every time we turn on the TV, visit a website, or open a newspaper, we are bombarded with advertisements. This environment of ubiquitous advertising forces companies to develop ads that attract attention and cause their products to stand out. However, these efforts must not run afoul of the law.

It is crucial that any advertisement your business runs is truthful and in compliance with truth-in-advertising laws. One such law provides that advertisements must not be deceptive. Below are the two elements of deceptive advertising that you should be aware of if your business engages in any type of advertising.

Misleading to reasonable consumers

Advertising cannot mislead consumers through the use of false statements, omissions, or the inclusion of evidence without a reasonable basis. 

It might seem like all advertising is somewhat misleading, but there is a fine line between certain lawful, advertising techniques — like “puffery” — and other techniques that violate federal laws. Puffery is lawful when the broad, boastful, and exaggerated terms are unlikely to mislead reasonable consumers.

Material to the consumer’s purchasing decision

Certain types of advertisements come under more scrutiny. For instance, advertisements containing representations about price, performance, effectiveness, and safety, and those making guarantees, are usually material to a consumer’s purchasing decision. Therefore, the aforementioned advertisements are more frequently targeted by deceptive advertising lawsuits.

However, as noted in this case between two vacuum companies, Dyson and SharkNinja, the placement of the advertisement on the product itself also plays a role. In that case, Dyson accused SharkNinja of including a performance statement on the product’s packaging without having supporting evidence. A judge determined that since the advertisement was located in a place that consumers would not see until after the product was already purchased, it was not material to the purchasing decision.

Staying within the legal boundaries of advertising

It is important to attract customers and consumers through advertising. Doing so within the boundaries defined by law is essential, because engaging in deceptive advertising — intentionally or not — can be a costly mistake.

As a business owner, you should avoid engaging in deceptive advertising and should consider taking action against others whose deceptive advertising causes damage to your business. For guidance in either area, consult an experienced attorney.


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