Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 83 Types of false advertising claims • The ad is literally false. This is the easiest claim to make, because if an ad is literally false, or false on its face, consumer deception is presumed. For example, an ad claiming, “We are the only manufacturer of BPA-free bottles” is literally false where a consumer can get BPA-free bottles manufactured elsewhere. The claim, however, must be objectively verifiable and not just “puffery,” which is vague or subjective language that the reasonable consumer would not take seriously. Saying “We have the best pizza in the world,” for example, is likely puffery. • The ad is impliedly false. An ad may technically be true but misleading nonetheless. The question is: What does the consumer take to be the message? For example, an ad claiming a product is “cholesterol free” might technically be true but misleading if the product actually raises cholesterol levels. Consumer survey evidence is generally needed to prove the ad gives consumers a false impression. • The ad is “false by necessary implication.” On rare occasions, an ad may be literally true but have only one unambiguous, false meaning in context. Consumer survey evidence is not necessary to prove falsity. For example, the claim “No restaurant chef in New York uses an ABC mixer,” even if true, could be false by necessary implication if ABC does not make a professional-grade mixer, because the only possible meaning in this context is that ABC makes a professional-grade mixer rejected by New York chefs. • The ad is not substantiated. The evidence required to substantiate an ad depends on what the ad says. For example, the claim “two out of three doctors recommend ABC” requires a reliable survey to that effect. Establishment claims, such as claims that “tests prove X,” or “studies show X,” must be supported by “competent and reliable scientific evidence” – i.e., tests, studies, or scientific evidence evaluated by qualified people, using methods accepted by experts. • A comparative or superiority claim in the ad is false. This occurs where an advertiser compares its product to a competitor’s (by name or clear identification, i.e., the “leading brand”) and/or claims the advertiser’s product is superior to the competitor’s. Where the ad is a simple comparison, the competitor must show the ad is false. For a comparative establishment claim, the competitor can win by attacking the tests the advertiser relied on.