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How does the FTC determine if an ad is deceptive?
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The FTC looks at the ad from the point of view of
the "reasonable consumer" -- the typical person looking at
the ad. Rather than focusing on certain words, the FTC
looks at the ad in context -- words, phrases, and pictures -
- to determine what it conveys to consumers.
The FTC looks at both "express" and "implied" claims. An
express claim is literally made in the ad. For
example, "ABC Mouthwash prevents colds" is an express claim
that the product will prevent colds. An implied claim is
one made indirectly or by inference. "ABC Mouthwash kills
the germs that cause colds" contains an implied claim that
the product will prevent colds. Although the ad doesn't
literally say that the product prevents colds, it would be
reasonable for a consumer to conclude from the
statement "kills the germs that cause colds" that the
product will prevent colds. Under the law, advertisers must
have proof to back up express and implied claims that
consumers would take from an ad.
The FTC looks at what the ad does not say -- that is, if
the failure to include information leaves consumers with a
misimpression about the product. For example, if a company
advertised a collection of books, it would be deceptive if
the ad did not disclose that what consumers actually would
receive were abridged versions of those books.
The FTC looks at whether the claim would be "material" --
that is, important to a consumer's decision to buy or use
the product. Examples of material claims are
representations about a product's performance, features,
safety, price, or effectiveness.
The FTC looks at whether the advertiser has sufficient
evidence to support the claims in the ad. The law requires
that advertisers have proof before the ad runs.
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