False Advertising Claims
Commercial Law

It Matters What You Say – False Advertising Claims

When considering a claim of false advertising it’s first important to understand what “advertising” is.  Typically, advertising is defined as commercial speech, made for the purpose of influencing someone to buy a product or service, that is then disseminated to the relevant audience.

But speech is often misconstrued and it depends on the reader or listener what message is actually conveyed.  That is why a claim of false advertising is evaluated from the perspective of the consumer.

If there is a claim of false advertising, it’s important to understand who can bring the claim?  First, the government can bring a claim with agencies such as the Federal Trade Commission, State Attorneys General, etc.  Competing companies can also bring claims under federal statutes such as the Lanham Act and some state laws.  Consumers may also bring claims and typically do so in the form of a class action.

To proceed with a false advertising claim the claim itself must be substantiated. This is a term of art and has special meaning in this contact.  To substantiate a false advertising claim you must:

  • Competitive claims must be true. They are also prohibited from being misleading.  What can constitute misleading?  Omitting material facts, using suspect or convoluted phrasing, apples and oranges comparisons.
  • Claims must be validated: Saying something true is not good enough, claims must be validated in a measured and reliable way, with supporting documents.

So, there are two important parts to a false advertising case:  First, there must be a claim, ie; the business must “claim” that its product or service is or does something particular.  Second, there must be substantiation for the claim, ie; backup documentation that is thorough and consistent showing that the claim is true.

To prove a case of false advertising both of these criteria must be met, there must be a claim that is not true, and it is not substantiated.

There are many types of substantiation, a few examples are:

  • Establishment (test prove or establish a particular claim)
  • Monadic (self-referential) – this could be a claim that the product is long lasting and the substantiation is that the produce does, in fact, last long.
  • Comparative – this could be substantiation based on scientific comparisons against other products (a batter that lasts longer than competitors’)

But remember, all of these pieces of information is based on a reasonable consumer’s perspective, not product specialists or scientists, just average consumers.

To avoid a claim of false advertising avoid:

  • Claim of overall superiority (instead substitute language that refers to the product being a “superior alternative”
  • Superlatives: “Most”, “Leading”, “Best”
  • Exclusivity: This is a very difficult standard to substantiate as true and should be avoided.

Following these simple rules will help you avoid claims of false advertising and stay out of trouble.