Deceptive advertising is one of
the few forms of speech that is not protected under the Constitution’s first
amendment. To define,
it is “Any advertising or promotion that misrepresents the nature, characteristics qualities or geographic origin of goods, services or
commercial activities.” The agency in charge of regulating companies and advertisers which use deceptive advertisements is the Federal Trade Commission.
However, companies are still trying to find ways to deceive the consumers. Over
the years, the FTC has begun increasing the punishment for companies, especially
in the health and fitness industry, who attempt to deceive consumers through
their advertisements.
In March of 2012, Sketchers was
forced to settle with the Federal Trade Commission for a whopping “$40 million
to settle claims
that deceptive advertising was used to sell Sketchers’ toning shoes and apparel”.
The Federal Trade Commission’s penalty was the largest ever settlement fee given
out. The substantial punishment highlights the FTC’s increased oversight
of advertisers that use unsubstantiated health and fitness claims to lure
unsuspecting consumers. Sketchers was charged with violating federal law by falsely
representing clinical studies backing up claims that Shape-Ups, Resistance
Runner, Toners, and Tone-ups would help people lose weight, and strengthen and
tone their butts, lets, and abdominal muscles.
In trying to appeal to health
enthusiasts, Sketchers advertisements had lines saying “get in shape without
setting a foot in a gym” and “make your bottom half your better half.” David
Vladeck, the director for the FTC’s bureau of consumer protection, said that “Sketchers
put its foot in its mouth by making unproven claims. People didn't lose weight,
they gained weight. Either shape up your substantiation or tone down your
claims.”
It has been a year since the FTC began to step up their efforts in forcing marketers to shape up healthy and fitness
claims. Jeffrey Greenbaum, a managing partner with Frankfurt Kurnit Klein &
Selz, said that “They are sending a very strong message to the big national
advertising industry that the free press is over.” This mission began with the
FTC’s $25 million settlement with Reebok in mid-2011 for deceptive ad
practices. In Reebok’s unprecedented case, they were charged
with using a “lack of laboratory tests to prove that its EasyTone and RunTone
shoe line would, as they claimed, improve muscle tone and strength in the butt,
hamstrings, and calves.” In increasing their oversight on health
advertisements, the FTC is now even telling companies that in order to make
accurate claims in the future, advertisers may need to get preapprovals by the
Food and Drug Administration.
The
health and fitness industry seems to have gotten the picture as it now appears that
the Federal Trade Commission has turned its focus onto trumped-up green
marketing claims. Just one week ago, the FTC “announced
the final revisions to its Guides for the Use of Environmental Marketing
Claims.” These guides, more commonly referred to as the “green guides” helps
marketers and advertisers avoid making deceptive eco claims without proof. The
reason that these guides have been currently revised is because the last time
they were updated was in 1998. Since then, the United States has seen a “green
revolution” with a myriad of companies jumping on the eco bandwagon and
developing greener products. Companies have a significant advantage over their
competitors if they are producing green products. A 2009 study by Green Seal,
the nation’s original green seal of approval company, showed that almost 80% of consumers are buying green products.
As these
guides become more well-known around companies and advertisers, consumers will
begin to see a lot less deceptive environmental claims in media. And more companies
can expect to receive citations from the FTC for making the unsubstantiated claims.
Regarding the new regulations, Christopher
Cole, a partner in Manatt Phelps & Phillips, said that “It is certain that
the new guides will change behavior among marketers over time. For those who
ignore the rules, one can predict that rigorous law enforcement activity will
begin soon.”
I
wanted to address the topic of deceptive advertising because in class this
week, we will be discussing the subject of “Ethics and Persuasion.” I've always
been interested in the regulations that are given to companies/advertisers who
use false claims because it is a very unethical practice. In the book we read
that in order for advertisers to determine the “ethical worthiness of a message”,
they need to pass all the levels of “TARES” which stands for Truthful,
Authentic, Respect, and Equity. It appears as though the FTC is finally coming around the a more rigorous TARES stance.
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