Have you ever suggested changes to an advertisement but then had the client ask "what's the problem, every word that I've written is true?" To answer that question, in presentations we often use a case the FTC filed way back in 2003 as the perfect example of a claim that might be literally true but yet deceptive. (Of course a claim can also be literally false but true -- more about that some other time.) That case, In re Telebrands Corp., finally came to an end recently, with the parties announcing a settlement of $7 million.
Telebrands marketed Ab Force, one of those electric belts that you wear around your abdomen that vibrate and purportedly tone your stomach muscles. Except Ab Force never made any such claims, at least not directly. Instead they mentioned advertisements consumers might have seen for similar products and touted the fact that Ab Force is “just as powerful and effective” but is substantially cheaper than those other ab belts. In other words, that it worked just as well but for less money. In the FTC's eyes that claim was literally true, all of the products were equally worthless. Telebrands similarly defended its advertisements by arguing that it had made no performance claims for the product. However, the FTC asserted that the advertisements implied that the product helped tone your abs. The FTC’s argument was based in part upon the numerous pictures of men and women with fab abs who just happened to be wearing the belt. However, the FTC also argued that Telebrands violated Section 5 by invoking claims that consumers may have heard for other products even if Telebrands did not actually say what those claims were.
Ordinarily consumer perception surveys filter out preconceived beliefs consumers may have relating to a product because advertisers are not typically responsible for such claims. For example, consumers may have a preconceived belief that organic foods are healthier but that doesn’t mean a company labeling its product as organic has to substantiate a health claim, even if it’s aware of consumers’ beliefs in that regard.
In the case of Ab Force, however, Commissioner (and perhaps soon Chairman) Leibowitz made an exception to that rule. The exception, which he made clear was limited to the facts in that case, was based upon the fact that the entire ad campaign focused around commercials for other ab belts (and thus invoking consumers’ preconceived beliefs seemed to be the only purpose of the ads) and evidence that the advertiser deliberately sought to invoke preconceived beliefs. So next time your clients come to you with a draft ad that’s literally true yet misleading, you might want to remind them about the ab belt that worked just as well as all the others.
Click here for an excerpt from one of the ads.
