False Advertising Surveys
Now more than ever, surveys are being used to support false advertising litigation. Given the relative ease of conducting an online survey, it’s easier to understand the relative level of actual confusion and impact that false advertising has on consumer choice.
What is a False Advertisement Survey?
A false advertisement survey measures any type of advertisement to see if it’s providing a false or misleading message to the consumer. It determines what consumers take away from the messaging or trade dress, how they internalize the falsities, and whether the misleading claims are material to their decision-making.
Some of the most common ways of false advertising are the following:
Omitting information: An ad may show incomplete information or skip it entirely to give a product a better look. While the information isn’t technically wrong, hiding vital information is considered misleading. A false advertisement survey would look into what’s being shared in the advertising and check if some vital information from the product is missing.
Photo retouching: This is mostly used in fitness and makeup products. It’s not wrong (and it’s in fact needed) to use retouching in most advertisements. This is why a false advertising survey is useful to determine if the retouching is making the advertisement misleading, like what happened to Olay in 2009.
Bait and switch: A very common form of false advertising, it consists on attracting the customer but changing the product once the customer is ready to buy. It’s usually done by a company advertising a product at a very low price. Once the client is in the store, they find the product is no longer available and the store tries to sell a different one at a higher price. It’s common to see airlines advertising flights at very low prices only to inflate them once the user is in the site, or when Costco showed photos of Kors bags that they didn’t sell.
Incomplete or inconsistent comparison: It’s very common to see ads saying their product is better than the competition or comparing it to another product’s characteristics, only using the ones that further their narrative. This is why it’s so common to see ads saying their product is “better than the leading brand” without actually saying what brand that is.
False claims: Finally, some brands may take liberties with what their product can actually do. in past work, we’ve explored the impact of label claims on vitamin purchases.
Why you need a false advertising survey
False advertising is not always very easy to spot when creating it. For example, if it’s not ok for Olay to retouch photos of their model, why is it ok for McDonald’s to show you photos of a burger you’re not going to get?
Literal falsity: When the advertisement is stating that the product is something that’s not, this is literal falsity. A product may state that’s completely organic when it has artificial components or state that it can do something that it can’t. This is obviously illegal.
Implied falsity: This is when a form of advertising is meant to confuse or mislead the consumer, depending on the interpretation. It doesn’t necessarily have to be false but it’s not completely true either. This is also illegal.
Puffery: When it’s obvious that the statement is meant to be not taken seriously, this is puffery. That’s why it’s not illegal to say that one restaurant sells “the best pizza in town” or when a mint ad shows the user exhaling ice. This isn’t illegal.
Finding the line however can be hard sometimes, even for big companies! For example you may think that Axe advertising women following their male consumers or Red Bull stating that their drink will “give you wings” may fall under “puffery”. However, they were both successfully sued for false advertising!
We have done numerous false advertising studies in support of class action or B2B litigation.