The Jartran case of 1983 was significant because it marked a beginning of claim awards to competitors who demonstrated that advertisements were false in their comparison of two products to create an impression of a superior product. In the Jartran case, the Court of Appeals for the Ninth Circuit maintained the award of US $40 million to Jartran, which was fighting the case for false advertisement against a larger well-known company, U-Haul. The ruling was based on the Lanham Act that was minor section of the federal trademark statute. The Lanham Act is interpreted to protect audience from being manipulated by false claims of superiority. It is the duty of the defending product company to provide evidence showing that an advertiser created a false impression of a fact about the competitor’s product. Secondly, demonstrate that the impression misinformed a sizable portion of the audience. Thirdly, show that the impression is likely to influence to influence how consumers purchase. Fourthly, show that the advertisement will hurt the plaintiff in the case by its false representation (Edman p.419-421). This essay seeks to show that the advertising audience possesses an above average intelligence capable of detecting false advertisement. The essay highlights how false advertisements are viewed legally, by the market and by consumers who are the target audience.
A Generalization of False Advertisement
The definition of false advertisements according to law are that there are commercial claims that are literally untrue in the facts, secondly, the claims may be literally true however their presentation maybe ambiguous thus portraying a false information. When the advertisements present an ambiguous statement, they become misleading to potential customers.
In the case of advertisements that compare a product or a service with another, a bald assertion amounts to a false advertisement. For example, saying that one product is superior than another is a bald assertion and thus a false advertisement. Secondly, comparing two products and accompanying the comparison with a test to highlight superiority also amounts to false advertising. So having an advertisement that claims product tests have shown that the product is better than the competitor’s product is a lie in advertising. The reason is that this is a vague representation of how the product is greater compared to another and is best categorized as a puffery. Puffery abuses the intelligence of the advertisement audience by inferring that they think in a similar fashion as toddlers yet to leave their diapers. The actual description of attributes of a product of the whole product to demonstrate its superiority according to the product testing is not puffery. When the claims cannot be proved then the advertisement claims become puffery (False Advertising p.327-329).
Edman (p.419) notes that the majority of advertisements in the US are a form of puffery selectively choosing facts that portray their product as superior than the competitors’ products. Although puffery is an insult to a nonprofessional’s intelligence, it is allowable under law because the viewer is expected to make an informed decision besides the alleged superiority. It only when the puffery becomes a clearly fallacy that the law comes in and the aggrieved party can sue for defamation. It is a common practice for advertisers to use scientific study facts to demonstrate the superiority of their products because their audience will give them the benefit of doubt.
According to Edman (p.417) there are three lies namely lies, damn lies and statistics. While statistics are not straight lies, they provide room for manipulation to fit the presenter’s posit. Advertisements are like statistics because they interpret facts, twist facts and emphasize the facts according to what the advertiser wants to pass. It is very apparent that advertising is a pillar in today’s economy and this is evident in its presence on every media available from print to the internet. When products are not moving in their respective markets, marketers resolve to create more awareness to buyers in order to increase demand. The most convenient and direct way of creating a mass awareness is through extensive advertising programs.
In order to decide on the truthiness or falsity of advertisement the Federal Trade Commission (FTC) in the U.S. uses a variety of means. These are face validations, dictionary definitions, consumer surveys, and consumer and expert testimonies. These methods provide the courts and the FTC with credible evidence to use in cases concerning false advertisements. However not all methods present a hard evidence. Face validation rely on the obviousness of a violation instead of immediate evidence. In addition to the obviousness of the violation, face validation is dependent on the previous experience and the expertise of the investigation body. Face validation presents a straightforward way but is prone to a bias judgment (Bernacchi p.26).
In expert testimony, the evidence relies on the aid of professional s conversant with the claims. The experts provide their views on the case, these views are usually isolated, that give insights on well-rationalized decisions. However, the determination of the experts rests with the FTC. Consumer testimony is not usually sought in false advertisement determinations although the audience of these advertisements is consumers. The reason for the decline is the lack of a trustworthy way to guarantee the neutrality of consumers. Consumer surveys serves as one of the best data collection methods to determine accurately the cognition of consumers and their connotations. Just like any other surveys, the accuracy of consumer surveys depend on the sample size, the type of questions asked, the responses given, the techniques of analyzing the data and the interpretation on the findings. Consumer surveys are therefore other statistical methods that are open to manipulation just like advertisements in question. To cover unsuspecting audiences from false advertisers the relevant regulatory authorities should admit, solicit and use correctly the reliable data collected after a proper analysis using standard behavioral science and statistical techniques (Bernacchi p.27).
How Consumers View False Advertisement and its Effects
Latour and Latour (p.128) indicate that one of the most important decisions that consumers make is to determine if an advertisement is true of false. People accept new information as true until evidence to the contrary is presented. So then the evidence of false is inhibited or is absent then an individual has a difficult time unbelieving a seemingly true statement that is actually false. Consumers do not form a critical response for the information they obtain form advertisers. Product quality is subjective and therefore the impression created by misleading advertisements is not guaranteed to cause the audience to create a false belief of the state of the product. An audience has to process new information presented by advertisements in a deeper manner to detect any false claim. Anything that promotes rational thinking in an audience’s interpretation of advertisements is bound to make them detect fallacies.
Darke and Ritchie (p.124) conducted four experiments to show that deceptive advertisements increases distrusts and as a result people’s responses to subsequent advertisements is negatively affected. The negative effect was witnessed in both advertisements form the same falsifying source and second-party sources. The authors note that the negative effect is long lasting and had a broad impact. The negative influence ranged among several product categories and different geographical regions. When advertisements were discovered to be false, causing an effect on their beliefs, product attributed and value perceptions, they became overly resistant to further influence of advertising. The deceived audience rejected even the outright truths of product benefits with the same name brands.
After the discovery of deception, the audience develops a negative bias that it uses to process systematically additional advertisements coming from the identical source. The biasness occurs in terms of the production of more negative thoughts and attitudes despite strong supporting arguments. To explain the subsequent defensiveness on second-party advertisement, despite the lower probability of being fooled again, the authors note that defensive stereotyping is the cause. In defensive stereotyping, the initial advertising deception activates the negative stereotypes regarding the whole concept of advertising and marketing. Therefore, the second advertiser finds an audience that is already defensive even before the reception of the advertisement, thus reducing the persuasiveness of the second advertisement.
When the audience discovers that an advertisement is false, they become aware of the dishonesty of the advertiser and feel bad for being fooled.
In order to prevent further insults to their intelligence, consumes evoke self-protective goals. They goals ensure that information processing is biased and the possibility of repeated fooling is minimized. When consumers become skeptical, they undermine the advantages of a free market. Deceptive advertisements can damage the whole advertising market in general and impact negatively on firms whose livelihood is dependent on advertisements. The risk associated with false advertising when the target audience reacts negatively is bigger than the benefit that the false advertisement might bring. Marketers should look for alternative ways to reach defensive consumers so that they influence a renewal of trust that is later spread through word of mouth (Darke and Ritchie p.126).
This paper concludes that, the ruling in the 1983 Jartran Case stating that advertisers must assume that the audience is of below average intelligence is wrong. As shown above, the audience has an above average intelligence capable of defending themselves against further deceptions from advertisements.
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