Deceptive Advertising

“Truth in advertising” is a legal principle, not just a saying. Businesses that make false and misleading claims about their products and services are liable for any harm they cause consumers who rely on those claims.


Federal and state consumer protection laws prohibit unfair or deceptive advertising in all types of communications and media, including television, social media (Facebook, Instagram, Twitter, etc.), websites, radio, newspapers and magazines, emails and text messages, telephone sales and solicitations and direct mail. These standards apply to ads for both products and services. They include not just false or unsubstantiated claims, but the failure to clearly and conspicuously disclose important terms and conditions that apply to purchases. In other words, what an ad says or doesn’t say are both important.



Special rules apply to advertising for certain products, including alcohol, tobacco, food, prescription and over-the-counter drugs, dietary supplements and weight-loss products and ads directed at children.

WHEN IS AN AD UNFAIR OR DECEPTIVE?

The Federal Trade Commission has issued guidance to advertisers to help them avoid unfair or deceptive advertising.


An ad is deceptive if it’s likely to mislead a reasonable consumer who is relying on the ad when deciding whether to purchase the advertised product or service.


An ad is unfair if it has a tendency to cause unavoidable harm and is not outweighed by the benefits provided to consumers.


It’s not just what ads say that can make them unlawful. What they don’t say also matters. An ad can be unfair or deceptive if it doesn’t disclose or doesn’t adequately disclose important terms about the product or service that’s being advertising.


Special rules apply to ads for certain types of products. For example, claims made in ads for weight loss and health care products must be substantiated by clinical tests or trials. Companies can’t make claims about these kinds of products without a reasonable basis to support those claims. For example, if an ad claims that “two out of three doctors recommend ABC Pain Reliever”, then the business making that claim must have “a reliable survey to that effect”. Or if an ad claims that a product will result in rapid weight loss, there must be clinical trials to back up the claim.

WHAT REMEDIES ARE AVAILABLE TO CONSUMERS WHO ARE HARMED BY FALSE ADVERTISING?

SOME EXAMPLES OF UNFAIR OR DECEPTIVE ADVERTISING PRACTICES

Our consumer protection law – Chapter 93A of the Massachusetts General Laws – provides legal remedies to consumers who rely on unfair or deceptive ads and who suffer harm as a result. Chapter 93A gives judges the power to double or triple damages for intentional violations and to award legal fees and costs to successful plaintiffs.



If you been harmed in any way by an unfair or deceptive advertising – whether economically or otherwise – please contact me to set up a free, initial telephone consultation to evaluate your case.

SOME EXAMPLES OF UNFAIR OR DECEPTIVE ADVERTISING PRACTICES

  • General misrepresentations and unsubstantiated claims about products or services, including quality, product uses and benefits and safety
  • False or misleading claims about future purchase requirements and recurring charges to credit cards (negative option sales)
  • False or misleading claims about prices and products that are “on sale”
  • “bait and switch” – refusing to sell the advertised product at the advertised price or with the advertised terms
  • false claims that a product is on sale or being sold at a reduced price when the advertised sales price isn’t at least 10% lower than the previous price (5% if price is over $200)
  • misleading use of terms like “special price” or “clearance price”
  • placing fake sticker prices on products sold in retail stores
  • False or misleading representations relating to policies for returns, refunds, rebates, cancellations and guarantees (e.g., “satisfaction or your money back”, “risk-free”, “unconditionally guaranteed” and “10 day free trial”)
  • Failing to clearly and conspicuously disclose applicable terms and conditions (including penalties and fees charged for refunds or cancelling cell phone, internet or other services)
  • Misleading use of the word “free” – when a product is advertised as “free” but only if the consumer buys another product, the price of the other product can’t be higher than its regular price
  • Refusing to honor or making misleading claims about the availability of credit and financing terms, including failing to clearly and conspicuously disclose all of the terms and conditions that apply (very common in connection with vehicle sales)
  • Ads that are deceptively formatted or that use fine print to hide or obscure important terms or required disclosures; this could include
  • print or internet ads that use fine print, dense legal language or footnotes to make required disclosures or that place disclosures in hard-to-find locations, such as at the bottom of a web page (required disclosures should appear near the advertised price)
  • using a fast moving “crawl” on television ads or infomercials that moves too fast to read
  • “Native ads”, “advertorials” and sponsored content” – these are ads that are made to look and read like news stories or featured articles and that are not clearly identified as advertising
  • Misleading endorsements and testimonials by celebrities or other consumers
  • Untrue claims about affiliations with government agencies and scientific and non-profit organizations
  • False or misleading representations in connection with telephone, internet or mail order sales, including
  • shipping unordered merchandise
  • shipping defective products or substituting another product for the purchased product
  • failing to ship merchandise within the promised time
  • High-pressure sales tactics (particularly with regard to telephone sales)
  • Internet ads – internet ads raise particular issues with regard to formatting and the use of pop-up windows and hyperlinks to obscure important terms or required disclosures
  • Search engine results that don’t clearly distinguish between paid search results (which are considered to be advertising) and natural (organic) search results

RESOURCES AND LINKS

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