“Truthiness” is one of my favorite words. It’s a term that originated in the 1800s. Yet it never gets old when I watch comedian Stephen Colbert use it as an evergreen theme in his monologues. It seems only apropos to discuss this term as I delve into the subject of truth in advertising.
Despite any misguided exuberance within an organization, companies have a duty not to fall into the realm of truthiness when marketing their products and services.
There is no gray area with the Federal Trade Commission with truth in advertising. It’s one thing to tout your unique selling points and it’s quite another to just make them up.
It crosses the line when you go from solving customers’ pain points to preying on them with empty promises. When it goes beyond showing the product, and instead misrepresents and exaggerates its actual size, ingredients, features, and benefits.
What is false advertising?
According to the Federal Trade Commission, which oversees consumer protection and enforces truth-in-advertising rules, ”Under the Federal Trade Commission Act:
• Advertising must be truthful and non-deceptive;
• Advertisers must have evidence to back up their claims;
• Advertisements cannot be unfair.
Additional laws apply to ads for specialized products like consumer leases, credit, 900 telephone numbers, and products sold through mail order or telephone sales. And every state has consumer protection laws that govern ads running in that state.”
For the FTC, it’s pretty black and white. The proof is in the pudding or it should be in the pricing, delivery, and assembly charges, exclusions, limited-time promotions, endorsements, testimonials, ingredients, health, beauty, weight loss, and environmental benefits, and any other claims.
I’m actually kind of shocked and gobsmacked when I see these cases happen. How is it possible that no one within these boardrooms, product development teams, marketing departments, advertising agencies or even advertising mediums didn’t speak up and say, “We shouldn’t run it. It could hurt the company’s brand and bottom line.” There wasn’t one soul in the room brave enough or smart enough to state the obvious?
Stand-Out False Advertising Examples Worthy of a Stand-Up Monologue.
Here are a few of my favorite examples of truthiness.
Instances where consumers were so peeved they decided to sue. Enough was enough. They hired lawyers. They got justice for themselves and other consumers with class action lawsuits. They made companies change their verbiage, labeling, and tune.
The people have spoken. And these companies had to do some ‘splaining about all this complaining:
• 5-Hour Energy claimed their drink was more effective than coffee and doctors recommended it. A judge ruled that its claims were not backed by scientific evidence.
• Luminosity, an app designed to challenge your brain, claimed it prevented Alzheimer’s Disease and promoted better studying for school. Lumos Labs also lacked the scientific evidence to back it up. In this instance, the company blamed the action taken and subsequent settlement on its marketing language, which had been discontinued.
• New Balance said its toning TrueBalance and Rock & Tone lines of shoes had a “hidden beauty secret” that promised to burn 8% more calories by activating certain lower body muscles, yet offered no proof that they actually worked the glutes, hamstrings, or calf muscles more than other shoes. This company also omitted the potential risk of injury from balancing on them. A $2.3-million settlement was reached, which lead to class action refunds for all eligible buyers.
• Hotels.com led consumers to believe a Los Angeles hotel was “near the beach.” I can just picture all those vacationers hoping they’d only need their flip-flops for a short stroll to dip their toes in the sand and water. Not so much. The beach was actually 10 miles away.*
• Kellogg’s Frosted Strawberry Pop-Tarts ingredients contained more dried apples, dried pears and red food coloring than strawberries. This is a classic example of “angel dusting” where an expected quantity of a beneficial ingredient is woefully lacking. Since pears cost half as much as strawberries, this product provided less nutritional value and clearly more value to the company’s bottom line – until a woman sued the company for $5 million.
• Hefty Recycling Bags were supposed to be “perfect for all your recycling needs.” In actuality, the bags are made with a low-density polyethylene plastic (LDPE #4) that many recycling facilities refuse to accept. Which means consumers’ dutifully recycled contents also get rejected, the lawsuit alleges. Hefty Recycling Bags are really just pretty trash bags. This class-action lawsuit also suggests that Hefty violated anti-greenwashing laws in California, too. Could hefty fines and penalties result?*
• Red Bull still claims its energy drink “gives you wings.” (I actually really like this line.) But their slogan left the company susceptible to a lawsuit, not because the customer actually expected to suddenly don ornithological super powers. The plaintiff felt mislead when he realized a 250ml can offered less caffeine than a cup of coffee. The judge agreed. ‘“Such deceptive conduct and practices mean that [Red Bull’s] advertising and marketing is not just ‘puffery,’ but it instead deceptive and fraudulent and it therefore actionable,” the lawsuit stated.’
These are just a few false advertising examples of the litany of lawsuits and enforcement actions being taken right now by the Federal Trade Commission. There are simply too many companies to mention that are making claims that their products can prevent or treat Covid-19.
How to Ensure Truth in Advertising.
Whenever I’ve worked on any big accounts or highly regulated industries, such as automotive, finance, food, and healthcare, my work has always been subjected to legal review.
It’s always a good idea to seek counsel prior to incurring the expense of paying for product packaging, sales materials, advertising, video production, and media buys.
Account supervisors, marketing managers, copy supervisors, and proofreaders on the agency side and product managers, engineers, medical, and legal experts on the client side, should work together to make sure that the copy sells without making any overpromises.
Inserting phrases such as “may,” “might,” “could,” and “help” will certainly alleviate anything that may, might, or could lead to legal liability in many instances. Those phrases become the safe words a writer learns to instinctually include in copy to keep their clients or company out of trouble.
Yet, the onus of liability goes beyond just the copy. The photographs and packaging should resemble the product in real life.
As much as creatives can whine about their best ideas or headlines being killed, sometimes that’s a very good thing.
The FTC has the ability to impose civil and criminal penalties for false advertising. And when that happens, misleading marketing suddenly turns into bad PR that never goes away.