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.”