The average consumer is bombarded with somewhere between 500 and 1300 advertising messages per day. If you doubt that, think about it for a moment. When we get up in the morning, most of us typically turn on the television and listen to the news or a talk show while we get ready for work. During that half-hour or so, there will be anywhere from 15 to 25 commercials. Now, we may not consciously pay attention to each – – or any – – of those commercials. However, the reality of it is, that our subconscious mind will pick up some information anyway. We may also take time to read the paper as we eat our breakfast. As we do so, we will likely pass anywhere between five and 15 additional advertisements; some of which will seep through our mind. As we drive to work, many of us will have on our radios where we will be hit with another 10 to 15 ads. Also, as we drive, we will be exposed to billboards, signage, business logos, advertisements on other vehicles, etc. which will add another 10 to 20 ads. That makes anywhere between 40 and 60 ads we could be exposed to in less than one hour, which averages 50 advertisements. Now multiply that by the average number of hours Americans remain awake and you get 800 advertising messages. If you take into consideration other activities in which we partake like reading magazines, going to the movies, taking part in some kind of leisure activity, or surfing the Internet, you can easily see how we are exposed to so many advertising messages on any given day.
Unfortunately, a lot of the messages that we are being exposed to are less than honest. False advertising has once again become a regular main stay in today’s world. A good example of this comes in the form of weight loss supplements. They proclaim “take these pills and you will lose weight 30 percent faster without diet or exercise.” Others say, “these pills work uniquely with a woman’s body to increase the amount of weight loss.” Exercise programs are nearly as bad. Think about those wonderful ab belts that are supposed to “help you lose inches around your waist and firm your abs without sit-ups or crunches.” Or how about those expensive exercise systems that “guarantee if you’re not happy, we will refund your money.” Has anyone ever really tried to get his or her money back on one of those?
I’m as guilty as the next one in looking for an easy way to lose weight and firm and tone my sagging, dragging, nearly 60-year-old body. And I will admit that about 95 percent of all of the diet programs and exercise efforts that I have used were of absolutely no value at all. In actuality, I have only found one eating system (not really a diet, per se) and one piece of exercise equipment that ever worked for me: Suzanne Somer’s “Somersize” eating program and her “Torso Track” exercise equipment helped me to lose 75 pounds in less than four months. The bonus was that I actually felt great doing it and I was in the best health – – and shape – – of my life. Still, more often than not such programs are a complete scam. Don’t even get me started on Michael Thurmond’s Body Blueprint Program
Now take that one example – – diet and exercise – – and multiply it by the thousands of other deceptive and false advertisements that we are exposed to every single day. Realistically can Tylenol, Aleeve, Advil, and Excedrin all be the best headache medicine? They claim they are. Is Crest, Colgate, or AquaFresh the toothpaste recommended by dentists? According to each of them, they all are. Does DuraCell or Ever Ready make the longest running battery? According to them, they both do. Is Pepsi or Coke America’s favorite soft drink? Both say they are. Deception in advertising has once again become so rampant that most Americans just throw up their hands in despair.
Two conflicting principles are involved in advertising law which might help us better understand this state of confusion. While it is true that the First Amendment grants the right of free speech and protects all forms of communication, including advertising, the U.S. Constitution gives the federal government the power to regulate interstate commerce. In doing so, Congress enacted two statutes that effect advertising. The first is the Federal Trade Commission Act. The second is the Lanham Act.
The Federal Trade Commission Act states that false advertising is a form of unfair and deceptive commerce (which trumps the First Amendment). In reality, while the act obviously includes advertisements that are untrue, it is also broad enough to encompass ads that make representations that no one has a reasonable basis to believe. The act also gives the Federal Trade Commission broad authority to regulate advertising which could include the barring of advertisements that are misleading or the right to order that ads be run to correct deceptions.
In order to establish a violation under the Lanham Act, consumers or competitors must prove the following:
- The advertiser made false statements of fact about its product;
- The false advertisements deceived or could deceive a substantial segment of the target population;
- The deception was material;
- The falsely advertised product was sold in interstate commerce; and
- The party bringing the lawsuit was injured as a result of the deception.
With these two acts in place, one must wonder why so much false advertising continues to take place. The answer is simple: Because we let companies get away with it!
Consumers have become so jaded that they really no longer believe any advertising claim that they hear. Some would ask why that is a problem. If consumers disbelieve everyone, then they are less likely to get hurt. Wrong! There are actually some scrupulous companies out there who strive to be honest and tell the truth. However, many of them will not remain in business for long because the bigger companies with the deeper advertising pockets can out-fox, out-maneuver, and out-advertise the good guys. The end result is that the consumer is, once again, being used.
The solution to this problem is also simple. Stop letting the bad guys get away with it. Complain, bitch, scream, write letters, file claims; do whatever you can to put a stop to this deceptive and unfair practice. The Federal Trade Commission welcomes calls, emails, and letters of complaint from the general public. Best of all, they are pretty good at their job. I know this because when I worked for the Oklahoma Small Business Development Center, I worked with inventors. There are a ton of agencies out there who are specifically set up to take advantage of inventors and most of my clients ran into at least one of them. Only through complaints filed through the FTC were these wonderful, creative people able to recover the thousands of dollars paid to fake invention companies. The moral of the story is: This is a system that works! We just have to use it.
I wish that Ralph Nader was still doing what he once did so well, instead of getting involved in the political arena. Nader’s Raiders were responsible for uncovering hundreds of such fake schemes as well as helping to get the truth in advertising acts that we now have in place. Unfortunately, there is no one picking up that banner in this day and age. Therefore, we have to do it for ourselves.