Abstract:
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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