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Literally True Deception
Deceptive Ads
A statement (or omission) that is
Likely to mislead
A reasonable consumer
About a material fact.
What’s material?
FTC Analysis Likely to affect consumer choice If false, injury is likely All significant health and safety claims
Other evidence Cost compared to competing product Reliable consumer survey data Credible testimony
Who’s the reasonable consumer?
General populace
Target audience Children Elderly Terminally ill
Evidence Expert testimony Consumer data
What’s misleading?
“The world’s best pizza”
Sunscreen “Contains Aloe Vera”
“3 out of 4 doctors recommend”
“Approved by the American Institute of Science”
Gainesburger Dog Food, 1960s
FTC found that this ad misled consumers . . . Why?
AT&T vs. Verizon WirelessU.S. District Court for the Northern District of Georgia, Atlanta Div.AT&T requests a TRO against use of the “maps”
AT&T Claims
Consumers interpret the maps as “no service”
3G is not a different kind of service, it’s just faster
The total experience of the ad leaves the impression that AT&T service is “out of touch”
Mall intercept study 53% said AT&T has no coverage in blank space 30% in “control” agreed
Verizon’s Responses
The ads are literally true.
The ads are not misleading.
AT&T’s “evidence” only addresses one ad.
AT&T’s “evidence” is not valid. Survey not limited to Smartphone users Questions poorly designed Control ad inconsistently designed