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”

Gaines  burger Dog Food, 1960s FTC found that this ad misled consumers... Why?

AT&T vs. Verizon Wireless U.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