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.