False advertising refers to the practice of making deceptive or misleading claims in advertising or promotional material about a product, service, or business. It involves presenting information that is false, inaccurate, or likely to deceive consumers, leading them to make decisions they would not have made otherwise. False advertising can take various forms, such as:
– False statements or misrepresentations: This includes making factual claims about a product’s attributes, features, benefits, or performance that are untrue or unsupported by evidence.
– Omission of material information: Withholding important information that would significantly affect consumers’ understanding or decision-making about a product or service can be considered false advertising. For example, failing to disclose important limitations, risks, or side effects associated with a product.
– False comparisons: Making false or misleading comparisons between products, services, or prices to create a deceptive impression or competitive advantage.
– Bait-and-switch tactics: Advertising a product or offer at a certain price or with certain features to attract customers, but then attempting to switch them to a different, usually more expensive, product or offer.
– Testimonials or endorsements based on false premises: Using fictitious or fabricated testimonials, endorsements, or reviews to mislead consumers about the quality or effectiveness of a product or service.
False advertising is an actionable civil claim under Section 43(a) of the Lanham Act, as well as state statutes.
To bring a claim for false advertising, a plaintiff must show: (1) The defendant made false or misleading statements as to their own products (or another’s); (2) Actual deception occurred, or at least a tendency to deceive a substantial portion of the intended audience; (3) The deception is material in that it is likely to influence purchasing decisions; (4) The advertised goods travel in interstate commerce; and (5) There was a likelihood of injury to the plaintiff.
“Notably, the plaintiff does not need to show that they suffered actual injury from the defendant’s allegedly false advertising. That said, puffery, or claims a person could not reasonably rely upon, are not grounds for a false advertising claim.” (LII)
Regulatory bodies, such as the Federal Trade Commission, have also established rules and guidelines to protect consumers from false or deceptive advertising practices.