Any business (and affiliates and marketers) that engages in interstate commerce will be subject to federal laws. Interstate marketing and advertising practices are regulated by the Federal Trade Commission (“FTC”) under the FTC Act. Services and goods offered through the Internet are considered to be a “use in commerce” since the services are available to a national or global audience. The FTC regulates Internet advertising, marketing activities and sales to consumers as the watchdog agency. The same consumer protection laws that apply to commercial activities in other media apply to the Internet. Under Section 5 of the FTC Act, illegal advertising practices are categorized as either an unfair method of competition or an unfair or deceptive act or practice.
Any activity that is likely to cause consumer confusion as to source, sponsorship or affiliation of any good or service is essentially an “unfair” act or practice under the FTC Act. However, the real culprit for interstate businesses, affiliates and other Internet marketers is avoiding advertising claims which are unfair or deceptive. There is no hard definition of what practices are considered “unfair” or “deceptive,” under the FTC Act.
But, in the simplest terms, all advertisements:
must be truthful and not misleading;
must have evidence to back up any claims made in the ad; and
cannot be unfair.
Complying with FTC laws really boils down to a single standard that your advertisements or marketing practices will be judged under. This “standard” is known as ‘materially misleading.’ This is basically the crux of website advertising law and the standard by which all Internet claims and representations are measured to determine whether they are deceptive. Either an ad or claim is materially misleading, or it isn’t deceptive. This standard is defined by a series of guidelines, rules and policy statements published by the FTC. The FTC rules and guidelines illustrate what the FTC believes is illegal under the technical language of the FTC Act.
The principle guidelines on advertising are contained in the FTC’s Policy Statement on Deception. Under the FTC’s Statement, an advertisement or marketing practice is deceptive if there is a representation, omission of information or some other practice that is likely to mislead a reasonable consumer and which is likely to influence or otherwise “affect the consumer’s conduct or decision with regard to a product or service,” to that customer’s detriment.
In terms of Internet advertising, an unfair or deceptive act or trade practice is usually made by publishing a false advertisement. The Act specifically states that using a false advertisement in commerce is unlawful and doing so is also categorized as an unfair or deceptive act or practices. The term false advertisement means an advertisement, other than labeling, which is misleading in a material respect. As you can imagine, flat out lies about your products or services, or those that you promote or endorse, are going to be misleading and illegal. Simply stated, you cannot make any false claims. However, a claim can be misleading in many other ways and this is where most Internet businesses land into trouble.
If you don’t understand the nature of what is considered materially misleading, you could very easily violate FTC laws. You MUST understand all the ways a claim may mislead a consumer and you MUST know what is considered a claim or representation in the first place. This is really the key to understanding FTC laws. For instance, a claim can be literally true, but if it is only true in limited circumstances, or if it is subject to more than one interpretation, one of which is not true, or misleading in its overall effect, it is deceptive. I am going to take you through each element of an advertisement from the FTC’s point of view so you can master this understanding. Again, either you can pay an attorney to look at your specific ads, throw them up blind, or take the time to learn the fundamentals yourself.
A. Overall Context Matters
A claim can be suggested by the overall context of an advertisement. This means a representation or claim can be made or suggested by any “statement, word, design, device, sound, or any combination thereof”. In other words, the FTC won’t just look at the words of an advertisement by itself to determine if it is misleading. Other than the words of the ad, the name of the product, the nature of the product, any visual or audio depictions or symbolism can all provide the context to establish a claim. Even the website name or metatags can provide the context for a claim. The overall experience conveyed by viewing the ad in relation to the rest of the website sets the context for a particular claim.
The U.S. District Court, Third Circuit stated the FTC standard regarding context of an ad clearly. “The tendency of the advertising to deceive must be judged by viewing it as a whole, without emphasizing isolated words or phrases apart from their context.” Beneficial Corp. v. FTC (1976). Using illustrative pictures on your website to demonstrate the effectiveness or results of a product is a common example. Without stating some direct, express claim in words, these pictures would be just as effective in suggesting some claim to your visitors.
EXAMPLE: You operate a website called homesavers.com which offers loan modification and “foreclosure rescue” services. The title of your webpage is labeled as “save home” and your home page contains a picture of a “happy and relieved” couple sitting at a kitchen table looking at their laptop which shows homesavers.com on the screen. The website advertisements include a heading titled “Begin the process of saving your home now” and other claims of “if you act now, we can save your home.” Without any qualifying disclosures, the overall context of the website may imply that consumers can expect to save their homes by using homesavers.com.
B. Express and Implied Claims
If an ad makes either express or implied claims that are likely to be misleading without certain qualifying information, this information must be disclosed. You must determine which claims might need qualification and what information should be provided in a disclosure. The important thing to understand is the fact you can make an implied claim through your advertisement and that you cannot suggest any claim which you are not permitted to make expressly by law. An express claim is an obvious one. For example “This product will stop bullets from penetrating your body in an advertisement for a bullet proof vest. Similarly, the claim “removes every type of stain from your carpet” is an express claim that the advertised product will remove all stains from your carpet.
An implied claim is one made indirectly or by inference and causes the most problems for Internet advertisers.
EXAMPLE: In an ad about the innovative bullet proof vest, it claims the vest is “used by law enforcement officers and professional body guards.” Since the ad claims law officers and security professionals use the vest, it implies they use it to stop bullets. It may also imply reliability to the average consumer.
EXAMPLE: “2 out of 3 mechanics prefer mighty wrench to any other wrench on the market! Besides having to substantiate that 2 out of 3 mechanics prefer mighty wrench, this claim implies that the tool is adept at working on cars. This is an implied claim even though the ad does not expressly state that “mighty wrench” is suitable for cars.
EXAMPLE: In an advertisement for sprinting shoes, your website claims “Joe Sprinter wore these shoes during his Olympic 100 meter Gold medal run.” This implies that the shoes are made for, even particularly well-suited for, sprinting and running fast. This ad implies a particular quality about the shoe.
EXAMPLE: Your website sells household carpet cleaning products. You use an ad promoting your “wonder-clean” carpet cleaner, stating that it “removes the toughest household stains.” Directly below the ad, there are a series of illustrations depicting a dog standing on a carpet next to an obvious wet spot on the carpet and the product then being applied by a woman. Then, that same woman is depicted with a smile on her face and the wet spot has disappeared. The ad suggests that it removes dog stains from your carpet (maybe even common pet stains in general).
EXAMPLE: An ad claiming “experts agree our product beats our competitors hands down” probably implies that there is actual proof that most if not all experts have made such a proclamation.
C. Leaving Out Important Information
A claim can be misleading if relevant and material information is left out. An advertisement cannot leave out facts which are material in light of any claims made or material in light of how the customer will use the product under the conditions stated in the advertisement (or under ordinary conditions). If a claim is only true in limited circumstances or a benefit only applies sometimes, this must be disclosed.
EXAMPLE: In ad for revolutionary new speakers your sell from your discount stereo web store, your website boasts that the speakers “can achieve a 98% efficiency rating.” But, this rating cannot be done with every type of stereo receiver. In fact, a few different models of speakers can achieve the same rating, but only if they are used in conjunction with certain receivers. These are considered “high-end” receivers and are not common. Since the stereo receiver required is uncommon, this should be disclosed.
D. Material Claims
In order for a claim to be materially misleading, the claim or any information left out must be important or significant to the consumer’s choice to purchase the product or service. If the average consumer would not find the claim to have any significant influence on his or her decision to purchase, the claim is not material. The FTC has stated that examples of material claims include representations about health or safety, a product’s performance, features, price, effectiveness or other central characteristics. But, these are not the only types of claims which are material. Information is also likely to be material if it concerns durability, performance, warranties or quality. Information pertaining to a finding by another agency regarding the product may also be material.
The FTC presumes that express claims are material. As the Supreme Court stated recently, “in the absence of factors that would distort the decision to advertise, we may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising.” Where the seller knew, or should have known, that an ordinary consumer would need any omitted information to evaluate the product or service, or that the claim was false, materiality will be presumed because the advertiser intended the information or omission to have an effect. Similarly, when evidence exists that a seller intended to make an implied claim, the FTC will infer the claim is material. The FTC might also look at other evidence that the claim or omission is likely to be considered important by consumers, such as testimony or customer surveys.
If a claim is material, it also means that injury is likely to exist because of the representation, omission, or practice. Injury to consumers can take many forms according to the FTC and it exists if consumers would have chosen differently but for the deception. If different choices are likely, the claim is material, and injury is likely as well. The statement on deception states that injury and materiality are different names for the same concept.
E. Substantiating Your Claims
Advertisers must have sufficient evidence to support any claims made, or the claims are deceptive. In order to avoid deception, you must have a “reasonable basis” for any factual or objective claims you make in any advertisement. (FTC vs. Pfizer, Inc. (1972)). This is also referred to as the doctrine of “substantiation.” This reasonable basis must be based on objective, credible and reliable evidence. You can use surveys, statistical evidence (studies) and expert opinions to substantiate any claim you make and otherwise prove a claim is true.
If the advertising claim suggests a level of support, it is obvious that the advertiser must have evidence of that support. For example, if a marketer claims that “three out of four customers prefer our brand”, then the marketer must have reliable survey evidence backing this statement up. If an advertiser claims “clinical studies show,” the FTC requires that clinical studies must show what you claim.Where a claim is not specific, the FTC will look at a number of factors in reviewing substantiating evidence to determine whether there is a reasonable basis for the claim including: 1) The type of claim; 2) The product involved; 3) The consequences of a false claim and the benefits of a truthful claim; 4) The cost of developing substantiation and 5) The level of substantiation experts would believe is reasonable.
EXAMPLE: A website that sells energy drinks and related energy products makes clams that its products give its customers energy lasting “all day” or “gets you through your work day.” Those claims need to be true and need to be backed up by an actual clinical study showing that the drink or other products boost energy levels for the duration specified.
The FTC will look at a number of factors to help determine the appropriate amount and type of substantiation necessary, including:
The Type of Product. Health and safety claims are subject to the most scrutiny by the FTC as they pose the most risks to consumers. Also, alcohol and tobacco are particularly put under the microscope along with dietary and herbal supplements, weight loss products and nutrient claims since these are related to health. These types of claims require competent, credible and reliable scientific evidence. I discuss scientific evidence in much more detail under the discussion of substantiating health claims.
The Type of Claim. Technical claims and claims that consumers would have trouble or cannot possibly evaluate themselves are subject to much more scrutiny. For instance, “reduces your energy costs by 30%” “kills germs on contact” or “environment friendly” are claims consumers cannot easily substantiate on their own. As a matter of policy, when consumers can easily evaluate the product or service this has historically attracted less FTC attention than those claims that consumers would have difficulty evaluating directly, such as “e-cigarettes contain none of the harmful ingredients of tobacco cigarettes.” Also, if a product is inexpensive and it is frequently purchased, the FTC will examine the practice closely before issuing a complaint based on deception. According to the FTC’s view, there is little incentive for sellers to misrepresent in these circumstances since they normally would seek to encourage repeat purchases.
General Results Claims
Stating that your products will deliver certain results may also be misleading. You must be able to substantiate any results you claim. If you make any specific claims of product results, you must also disclose that the product will not deliver the same results to everyone and may not even be effective for some purchasers, unless this is absolutely the case. Of course, if you can substantiate that the product would achieve the results claimed in each circumstance of use for all purchasers, you don’t have to worry.
For instance, a website that instructs businesses on how to establish and build a good business credit rating and makes the following claims on its website: “Instantly obtain multiple credit lines” and “establish a top credit rating fast.” How about a website offering SEO services that claims “our customers usually see double the traffic within 2 months.” These are results based claims. If the average client is not likely to achieve these results, you should disclose these facts. Otherwise, these ads may be misleading and thus deceptive.
If your business is offering a new product, then you can’t make a general results claim if no data on the results exists. As burdensome has this seems, the FTC’s comments on the matter of substantiating claims are pretty clear. I get a ton of questions on this issue. Section 5 of the FTC Act requires advertisers to have substantiation for the messages that consumers reasonably take from their ads, which means they must first know what messages consumers take away from those ads.
F. Reasonable Consumer Standard
The FTC will always evaluate any advertisement from the point of view of the “reasonable consumer.” This basically means looking at how the average reasonable person would interpret or respond to any claims or representations you make. Your business will not be liable for every interpretation or response by a consumer. This is actually a fairly well-stated principle in the context of advertising. Advertisers are not liable for every possible misrepresentation, no matter how outlandish. Misconceptions occurring among the foolish or feeble-minded are not reasonable.
The FTC provides the example that all “Danish pastry” is made in Denmark. The fact that some unreasonable individuals may believe that all Danish pastry is actually made in Denmark is not reasonable and does not cause liability to the advertiser. A claim is not deceptive only because it will be unreasonably misunderstood by an insignificant and unrepresentative segment of people.
When representations or sales practices are targeted to a specific audience, the FTC will look at how a reasonable member of that specific group would interpret the claim. For instance, terminally ill consumers might be particularly susceptible to exaggerated cure claims, children would likely believe claims adults would not, claims toward the elderly may be viewed by differently than the general public, etc. Similarly, “claims directed to a well-educated group, such as a prescription drug advertisement to doctors, would be judged in light of the knowledge and sophistication of that group”(FTC Policy Statement on Deception).
In addition, part of the reasonable consumer standard means that an ad may be capable of more than one reasonable interpretation by a consumer. So, if your ad conveys more than one meaning, or is interpreted differently and that meaning is misleading, you will be liable. This is true even if the main meaning of the ad is not deceptive. The critical question is determining what overall impression consumers would take away from a given ad when looking at the ad as a whole.
G. Subjective Claims, Opinions & Puffing
The FTC generally will not bring advertising complaints based on subjective claims that consumers can judge for themselves (i.e. claims based on taste, feel, appearance or smell), opinions or obvious exaggeration or puffing. For example, if a seasoning salt boasts on its website that the product is “delicious” or an ad claims a particular candle “smells great” these are general subjective claims regarding the taste and smell of the products. Stating a product has a “handsomely finished exterior” or comes complete with an “attractive carrying case” are examples of subjective opinions. Just because not everyone might find the exterior of the product in question handsome or that the carrying case is attractive does not make the ad deceptive.
Since these types of claims don’t pose risks to health or safety even if they were deceptive, they really are not scrutinized by the FTC anyways.
Similarly, a product endorsement that proclaims the product to be “the best product I ever used” is a subjective opinion. The claim is not a statement of fact or some claim about some result, quality or characteristic of the product. In general, if the claim is a subjective one and does not contain an objective component, it is not unlawful.
In contrast, claiming a product is superior based “on all the latest research and data” is not subjective any longer. It’s misleading if the product really is not superior based on the most recent research and data. Claiming a flashlight “outlasts all other major brands” or “more customers prefer our hand lotion to any other” is an objective claim which must be supported with some credible evidence of what is claimed. Opinions are deceptive only “if they are not honestly held, if they misrepresent the qualifications of the holder or the basis of his opinion or if the recipient reasonably interprets them as implied statements of fact”.
Advertisements involving obvious exaggeration or puffing are not unlawful. These are claims that the reasonable consumer would not believe. For example, claiming a child’s wooden sled that is “handcrafted by Santa’s elves” is obvious exaggeration, or claims that a product is “superior” to all others is a general statement and is puffing. Vague statements such as “the breakthrough the Industry has been waiting for” or “this could be the opportunity of a lifetime” are also examples of puffing and are lawful. These statements are really more in the nature of boasting than making an actual factual claim.
EXAMPLE: American Italian Pasta Co. vs. New World Pasta Co. (2004). The court stated that in order for a claim to be false, it must be “a specific and measureable claim capable of being proved false.” The Court in this example found that American Italian Pasta Co.’s use of the phrase “America’s favorite pasta” was not a statement of fact, but was considered subjective and vague puffing. This case provided a very good definition of what is considered puffing: “puffing is exaggerated statements or boasting upon which no reasonable person would rely or vague and highly subjective claims of product superiority.”
This article was written by Philip A. Nicolosi, J.D. Mr. Nicolosi provides legal services through his law firm, Phil Nicolosi Law, P.C., focusing on startup and small business law, Internet & technology law and commercial transactions.
Mr. Nicolosi serves as a trusted advisor to numerous startups and small to medium sized businesses. This includes representation for a wide range of business law matters including business organization, corporate/LLC governance, regulatory law, contracts and transactions and most other matters outside of litigation. Mr. Nicolosi provides guidance with e-commerce, Internet marketing and technology-related legal matters. He also assists startup technology companies with seed financing, venture capital and exit transactions.