False Advertising Regulation

False advertising is out of control and needs to be regulated through truthful advertising laws. False advertising has been increasing in frequency since 1998, and needs to be stopped, or at the very least slowed down. Many companies love to use deceptive advertising to trick consumers into buying their products under false pretenses. This is against the law, yet millions of companies get away with false advertising everyday. If the Government stepped in and brought all the false advertising regulators together to create one corporation under one set of rules, false advertising could be successfully regulated.

False advertising should be regulated by more strict truthful advertising laws, because false advertising tricks consumers into buying products that can't do what they claim. False advertising is like a plague that has run wild on the entire advertising community and needs to be put back into check. False advertising is extremely harmful to people in our current economy where money is not something to just be thrown away. People who are already living in poverty do not need to be tricked into spending money on something that in the end could be more harmful than helpful.

While many states already have laws against false advertising the laws are not strict enough. Also the Federal Trade Commission, or FTC that tries to govern false advertising laws, but only the FTC can enforce the FTC Act. James Astrachan writes on the powers and procedures of the FTC in his article, Legal advice about the FTC and false advertising, (2001). he writes:

The FTC can pursue the advertiser, its agency and their employees. It can fine and enjoin them. If the advertiser or agency is a subsidiary of another company, the FTC can go after the parent. The FTC even can impose liability for false advertising on a merged successor. When the FTC examines an ad to determine whether it is false, it will look at express and implied representations. Where information is necessary to prevent a claim from misleading consumers, but the information is not provided, the FTC likely will conclude that the ad is deceptive.

Though The FTC has the power to convict and essentially stop false advertising, the biggest problem presented is the amount of false advertising that is happening. This means there is no way to catch all the false advertising that occurs on such a regular basis. As reported by James Calderwood in an article simply titled, False and deceptive advertising (2010).

Recent reports indicate that lawsuits relating to false and misleading advertising and trade disparagement are increasing at a rapid rate. Some pending suits involve ceramic products, and a number of companies who deal in ceramic items have been threatened with this type of legal action. The trend toward these increasing lawsuits is not confined to advertising directed at the average consumer, but also relates to promotional material and statements directed to sophisticated commercial purchasers, such as industrial producers and retailers.

This shows that the FTC cannot keep up with all the false and deceptive advertising that has been happening. With the number of products in the world, it is practically impossible to keep track of every one of the commercials for the products ever made. If the government were to step in and mandate a more powerful law against false advertising, and create another branch to monitor it, this could slow down the rapid increase in false advertising.

One of the biggest and most serious problems in false advertising is found in selling medicine. The Medicine usually has a celebrity talking about an embarrassing problem and now that they use this medicine they are perfectly fine. What not included as the main point of the commercial, naturally is the side effects. Though some are mentioned it is usually the most common and the least severe In an article by Paul Suic he lists all the “side effects may include” in Zoloft.

“Abdominal pain, agitation, anxiety, constipation, diarrhea or loose stools, difficulty with ejaculation, dizziness, dry mouth, fatigue, gas, headache, increased sweating, indigestion, insomnia, nausea, nervousness, rash, pain, sleepiness, sore throat, tingling or pins and needles, tremor, vision problems and vomiting, acne, allergic reaction, altered taste, back pain, blindness, breast development in males, breast pain or enlargement, breathing difficulties, bruise-like marks on the skin, cataracts, changeable emotions, chest pain, cold, clammy skin, conjunctivitis (pinkeye), coughing, difficulty breathing, difficulty swallowing, double vision, dry eyes, eye pain, fainting, feeling faint upon arising from a sitting or lying position, feeling of illness, fluid retention, blushing, frequent urination, hair loss, heart attack, hemorrhoids, hiccups, high blood pressure, high pressure within the eye (glaucoma), hearing problems, hot flashes, impotence, inability to stay seated, increased appetite, increased salivation, inflamed nasal passages, intolerance to light, irregular heartbeat, itching, joint pains, kidney failure, lack of coordination, lack of sensation, leg cramps, low blood pressure, migraine, movement problems, muscle cramps or weakness, need to urinate during the night, nosebleed, purplish spots on the skin, racing heartbeat, lung problems, ringing in the ears, rolling eyes, sensitivity to light, sinus inflammation, skin eruptions or inflammation, sleepwalking, sore on tongue, speech problems, stomach and intestinal inflammation, swelling of the face and throat, swollen wrist and ankles, thirst, throbbing heartbeat, twitching, hemorrhage or discharge, and yawning (1999).

These are the side effects of Zoloft a depression medicine, a commonly used medicine, but if the commercials for this drug were advertised with a running list of all the before-mentioned problems how many people would really buy it? How well would a depression medicine work if more than one of these mentioned problems were to occur? The consumer is no longer depressed, but now has intestinal inflammation and rectal hemorrhaging. Paul continues in his article to mention around another half a page of emotional and mental side effects that could be caused by taking the medicine. None of these symptoms have been mentioned in the commercials

In an article written by Roger Vincent entitled, “Avoid being Mislead by False Advertising, (2010). he says,

I have checked out a lot of these products when some of them became available while browsing and have even bought some of them and they are not, that is to say the ones that I checked out, were not approved by the Food and Drug Administration (FDA).

So now coupled with the running list of side effects some of the medicines and drugs aren't even approved by the FDA, but that will never be written in big red letters on the box or in the commercial. Stricter advertising laws would make something as dangerous as an unapproved medicine easier to avoid.

Correy Stephenson writes on a recent case in which a drug company has been convicted of false advertising. False Advertising class action on the rise, (2008). He writes about a case in which a medical company had claimed to be able to cure the common cold with their new medicine, but in reality, it was just a weight loss supplement. Because of this false advertisement people could have been seriously hurt because of taking medicine under the idea that they would get better.

Along with this, many companies have taken advantage a sort of loophole in Section 43(A) of the First Amendment. Jim Astrachan and Carrie Williams have uncovered in Commentary: An advertiser's guide to false advertising and how to avoid it, (2006), that to avoid being tried for false advertising all companies have to do is avoid a “buy me” message in their commercials. So to avoid getting into trouble, companies don't include a message that directly tells people to buy their product and simply talk about it and the supposed wonderful things that it can do. Even without directly saying, “buy me,” in commercials, false advertising is still wrong and shouldn't be allowed. Douglis Lytle writes in his article Tips for avoiding claims of false advertising, (2001). that false advertising is meant to capture people's attention and to motivate them to make a buying decision. The whole idea of commercials is to get the consumers to buy whatever you are selling whether it is a TV show or a consumable item. In this sense all commercials have a “buy me” message and shouldn't be allowed to have such freedom of speech. He also mentions that the rules and laws of false advertising are rather vague, “It is the vagueness of general statutes prohibiting "unfair" or "deceptive" advertising that can present traps for the unwary.” This reveals a second problem that could be easily dealt with by creating one truthful advertising law for all of the United States. All the different laws, including laws created to be just state specific, increases the difficulty to catch false advertising. What is false in one state may not be convictable in another.

Like mentioned before as long as advertisements avoid the, “buy me,” factor companies can create deceptive and misleading commercials. After Michael Jordan dunked a basketball from the free throw line how many children said to their parents, “I want a pair of Jordan basketball shoes,”? After his accomplishment NIKE started using that clip in almost every commercial and ad. Once again NIKE didn't write or say anything about buying the shoes, NIKE just used Michael Jordan's miraculous leap as a tool. This told people that if they wore that kind of shoe ordinary people could be just like Michael Jordan. Consumers all knew in the back of their minds that this wasn't true, but the increase of NIKE's Jordan shoe line shows that people didn't care. Sure it was a lie that anyone could, “Be like Mike,” but the idea alone intrigued people enough to buy those shoes. All of the commercials ever made by the company that produces Axe and Axe Shower Gel also narrowly escape false advertising. They use the idea that using their products will make any, and all women fall in love with who ever uses it. Army commercials never shows a soldier dying, but it does show him standing victoriously on top of a mountain. There has never been a commercial for any of the United States Armed Forces that actually shows them in combat or dying. The only thing you see is the teamwork and the soldier achieving greatness in one way or another, never the other side. This is a form of false advertisement because it is only showing one side of a situation. There are countless other illogical commercials and magazine ads for other products that claim or depict something that their product can do, but in reality can't.

False advertisement may be illegal, but will placing stronger regulations infringe upon companies Amendment rights to free speech? If Americans can enjoy the right to free speech in everyday conversations, why can't advertisements and commercials do the same? In short people can say that they will suddenly fly around the world and nothing will happen. If a company says a shoe can make you fly around the world, and then show someone doing just that, are entirely different subjects. Whether obviously fake, or deceptively false, advertisements are directed at people, and are meant to convince someone to buy a product. As heard in a movie about Christmas, “Seeing is believing.”

The laws that regulate false advertising are both weak and unclear. I propose that the government creates a strong, and clear truthful advertising law. Along with the law the government should bring together the FTC and all other groups to make sure it is upheld. If the laws stay the way they are now, more people could be physically and financially hurt by unrelenting false advertisements. Just like many things before it, it is time for laws on false advertising to come together so that we can finally regulate false advertising and, in time, stop it.

Astrachan, J. (2001). Legal Advice about the FTC and false advertising. RetrievedFebruary 12, 2010, from "http://www.accessmylibrary.com/article-1G1-105122792/commentary-legal-advice-ftc.html

Astrachan, J., & Williams C. (2008). Commentary: An advertiser'sguide to false advertising and how to avoid it. RetrievedFebruary 4, 2010 from "http://www.accessmylibrary.com/coms2/summary_0286- 14891830_ITM

Calderwood, J. (2010). False and Deceptive Advertising. Retrieved February 7, 2010, from http://www.accessmylibrary.com/coms2/summary_0286-5594144_ITM

Stephenson, C. (2008). False Advertising Claims Action on the Rise. Retrieved February 19, 2010, from "http://www.accessmylibrary.com/coms2/summary_0286-34242540_ITM

Suic, P. (1999). Zoloft: Side Effects of the Medication. Retrieved January 28, 2010, from http://www.psychtreatment.com/zoloft_side_effects.htm

Lytle, D. (2001). Tips to avoiding Claims of False Advertising. Retrieved February 19, 2010, from "http://www.accessmylibrary.com/article-1G1-74017596/tips-avoiding-claims-false.html

Vincent, R. (2010). Avoid being Tricked by False Advertising. Retrieved February 8, 2010, from Avoid-Being-Misled-by-False"http://ezinearticles.com/?Avoid-Being-Misled-by-False