Is it illegal to market a product as if it would protect against something, while never making explicit claims?

Question

I've recently come across an advertisement online of a product that stated

"Most people have heard of the horror of [bad thing] or even [worse thing]. Protect yourself with [our product] today!"

A layman would interpret this as "Our product protects you against these things", although there has not been an explicit claim that the product would actually protect against these things. For the sake of the argument, let us assume that any expert in the field would instantly recognize that the product could not possibly protect against these things - such as for example a better car stereo would not protect against car accidents or scratches in the paint.

Would it still be legal in the US and/or the EU to make advertisement that is intended to mislead consumers, without ever making explicit wrongful statements?

Answer 1

In the EU this could constitute a misleading advertisement under Article 3 of the Misleading and comparative advertising directive:

In determining whether advertising is misleading, account shall be taken of all its features, and in particular of any information it contains concerning:

(a) the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services;

Of course, a judge will have to decide whether that particular phrasing constitutes "information about the results to be expected from their use", but there's a high chance they will. Note that it is sufficient for the results to be reasonably expected, not just "explicitly stated" or "guaranteed".

Answer 2

Specifically it can be legal in the United States, where commercial speech (speech made in order to elicit business transactions) is not as strongly protected as political speech (speech containing ideas and beliefs). As a general rule, you must advertise your product truthfully, but that offers a lot of wiggle room that as "exact truth" is perfectly fine as is boastful and outlandish statements.

For example, lets start with one of the most fun ad campaigns the old "9 out of 10" experts slogans. These are true, but often the methodology is misleading. While you expect 90% of all experts would say the same thing, often the survey will do numerous panels until they find one of the exact ratio... and that's if they are being semi-honest. Most will just take the first 9 experts who agree with them and one of the many more who don't agree and boom, here's your panel. And then the question might be overly narrow. The first advert campaign to use this was for Trident gum and specifically asked 10 doctors "Which gum would dentists recommend to patients who want to chew gum? 9 out of 10 say Trident!" Note the bolded phrase. None of the dentists they found would recommend chewing gum... but if you're going to do it anyway, chew Trident (the tenth doctor actually answered that he wouldn't recommend patients chew gum at all... which technically is true in that he's not recommending Trident... but he's not recommending Bubble Yum either.).

In food ads, you have to use the actual food product in your ad, not a fake. But you can apply all manner of toxic chemicals to the cooked Big Mac to make it look like the most perfect burger ever made, a feast fit for the gods, rather than the typical greasy mess of meat and condiments slapped in a sesame seed bun. So long as that is a Big Mac at the core of the plastic coating making it look oh so tempting. Happens in just about every food commercial.

Perhaps the most interesting treatment of the product that goes straight to your question is the homeotherapy product known as Head On, which the public will tell you is used to cure headaches... but the product will never say that (largely because per U.S. law, you can't advertise a product as a cure for a medical ailment unless the FDA specifically clears the products use for treating that specific ailment.). Head On's advertisement was an annoyingly repeated list of instructions of how to use the product: "Head On, apply directly to the forehead. Head On, apply directly to the forehead (repeats some more)." This is all true, as the instructions for the product's use are stated correctly... it's just that they don't say what will happen when you apply it directly to the forehead, letting the viewer assume that it cures headaches... instead of saying that legally speaking, the FDA only clears them to say it legally cures you of the amount of change in your wallet that they will sell a stick of Head On to you in the store (i.e. bupkis). The headache relief may be related to the application of the product... or the distress of doing that motion to your head... or the placebo effect of thinking it will help somehow... or the fact that mild headaches do pass over time... or the fact that you put your boot through the TV when their annoying advert came on...

Answer 3

This would be illegal in australia

The Australian Consumer Protection law prohibits “misleading and deceptive conduct in trade or commerce”. This statement is misleading and probably deceptive.

When deciding if conduct is misleading or deceptive, or likely to mislead or deceive, the most important question to ask is whether the overall impression created by your conduct is false or inaccurate.

It is possible to be 100% truthful and still be misleading:

Does your dog bite?

No.

[Pats dog, gets bitten] You said your dog didn’t bite!

That is not my dog.

Answer 4

hszmv answer is correct for the US.

However there are very specific rulesets in the US and this depends on the type of product/industry you are in.

For example in food the word "natural" can be used with certain restrictions for some food types and for other food types it may have more restrictions. Same for "sugar-free" or "fat-free" - which may contain sugar or fat.

Other types of advertising that I worked on was beer and hardware. I was presented fact sheets at the agency on terms/phrases we were allowed and not allowed to say. So without getting into a 100 different examples... You are at the mercy of the FDA and other regulatory agencies and at the mercy of interest groups and what they have lobbied to include and exclude into product speech and the rules around them.

Answer 5

You have to take into account who the target audience is. If it's marketed towards average people, then the benchmark is that of an average consumer, as this term is used for example in this Directive. So the judge has to put themself in the position of a layperson and determine how they would understand this advertisement and whether they would make a connection. Now, a linguist might argue that the connection isn't necessarily implied if analysed grammatically or an expert in the field wouldn't make the connection, but that's not important, what's important is the average consumer faced with your advertisement.