Friday, November 09, 2012

recommended reading: images and false advertising

Linda J. Demaine, Seeing Is Deceiving: The Tacit Deregulation of Deceptive Advertising, 54 Arizona Law Review 719 (2012)


This Article reveals  the central paradox in modern advertising law—that despite advertisers’ nearly universal shift from linguistic claims to comparatively powerful visual imagery, the FTC and courts continue to scrutinize the  more  trivial linguistic elements of ads while leaving visual imagery mainly unregulated. As a result  of this misplaced effort, the more  pervasive and  persuasive  the form in which an advertiser makes its deceptive claims, the less subject to regulation the claims will be.  The  Article analyzes the causes of this paradox and offers preliminary suggestions for how the FTC and courts could effectively adapt the general framework they apply in deceptive advertising cases to the unique characteristics of visual imagery. It concludes by explaining that a more rigorous assessment of visual imagery would fulfill Congress’s intent to protect consumers and business firms from  deceptive advertising and comport with Supreme Court commercial speech jurisprudence, while  avoiding  the market inefficiencies and loss of social capital associated with widespread deception.

A bit from the article itself, on the inutility of disclaimers to correct for deceptive visuals: “the FTC and courts  here, too, generally treat the reasonable consumer as having the remarkable ability  to  resist believing or being influenced by what his or her eyes plainly see.”

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