DECEPTIVE Submitted To:
ADVERTISING AND Prof. Premanand Shetty
DECEPTIVE ADVERTISING AND MARKETING PRACTICES
Deceptive advertising and marketing practices have been around since the beginning
of time and are still prevalent today. Sometimes it is done unknowingly by an
advertiser, however, more often than not, it is done with the intent to mislead the
consumer, making deceptive advertising a relevant marketing ethics issue. This paper
will first define deceptive advertising and marketing, and describe different types of
deception. Next, it will examine what makes an advertisement or marketing practice
deceptive. A look into the deceptive advertising issues of the 1990’s as well as
reviewing the monitoring agencies, and addressing liability issues and the penalties
associated with deceptive advertising will also be covered.
What is Deceptive Advertising and Marketing?
An advertisement or marketing practice is considered deceptive if there is a
"representation, omission, or practice that is likely to mislead the consumer". The
advertisement does not necessarily have to cause actual deception, but, according to
the Federal Trade Commission (FTC), the act need only likely mislead the consumer
(Federal Trade Commission, 1998 [on-line]).
Types of Deceptive Advertising
According to David Gardner (1975) there are three types of deceptive advertising:
Fraudulent advertising which is an outright lie; false advertising which "involves a
claim-fact discrepancy", such as not disclosing all the conditions to receive a certain
promotion or price; and misleading advertising which involves a "claim-belief
interaction" (Assael, 1998). An example of claim-belief deception is the Warner-
Lambert Listerine case. The label on the Listerine mouthwash bottle stated "Kills
Germs By Millions On Contact" immediately followed by "For General Oral Hygiene,
Bad Breath, Colds, and Resultant Sore Throats". This misled consumers to believe
that by using Listerine, it could prevent the common cold and sore throat (Warner
Lambert, 1978). Listerine had to redo its advertising and delete "colds and resultant
What Makes Advertising Deceptive?
According to the Federal Trade Commission (FTC), the government agency
responsible for regulating and monitoring advertising practices, there are three
common elements they look for in deceptive advertising and marketing claims. First,
there must be "a representation, omission or practice that will likely mislead the
consumer", such as misleading price claims, or a oral or written misrepresentation of a
product or service. Second, the FTC examines the misrepresentation from the view of
a "reasonable" consumer or particular target group such as the elderly. And finally,
"the representation, omission, or practice must be a ‘material’ one". This means that if
the misrepresentation is likely to affect the consumer’s decision whether or not to use
or purchase a certain product or service, this is considered material since the consumer
may have decided differently if not for the deceptive advertising (Federal Trade
Commission, 1998 [on-line]).
Oral and Written Misrepresentation or Omission
Let’s look first at oral or written misrepresentation, or omission, which is the most
common form of deceptive marketing. According to the Better Business Bureau, "an
advertisement as a whole may be misleading although every sentence separately
considered is literally true. Misrepresentation may result not only from direct
statements but by omitting or obscuring a material fact" (Better Business Bureau,
1998 [on-line]). This includes "bait and switch" advertising and selling, which is an
alluring offer to sell a product or service in which a company has no intention to sell
to the consumer. The goal of "bait and switch" is to get the consumer in the door
ready to purchase one product that was advertised and then get them to switch their
purchasing decision to a higher priced product or service. Vague generalities are also
included in this category. A vague generality is when an advertisement makes a vague
claim. There are numerous examples of vague generalities such as "our clothes are
made in the USA, our cars are fuel efficient, our frozen desserts are low in fat".
According to Mary Azcuenaga, Commissioner of the FTC (1994), "should we assume
that these claims apply to every individual item in the product line? To most or nearly
all of the products in the line? Or is the message that, on average, the products have
the characteristics?". These generalities often bring up more questions than they
answer for the consumer, and can be misleading and confusing.
The Reasonable Consumer
The FTC also believes that in order for an advertisement to be deceptive, the act or
practice must be considered from a reasonable consumer’s point of view, or if a
particular group is targeted, a reasonable member of the groups perspective; the key
word being "reasonable". In fact, a company is not liable for every consumer’s point
of view. One example is that some consumers may believe that a "Danish Pastry" is
made in Denmark. This miscomprehension is not considered to be deception since this
message is not likely to mislead a significant segment of targeted consumers (Federal
Trade Commission, 1998 [on-line]). If a particular product or service is marketed to a
particular group, the FTC will use the targeted group as their "reasonable member".
The thought behind this decision is that some groups may be more susceptible to
exaggerated claims such as an overweight person believing in a miracle pill that will
make them lose weight. (Federal Trade Commission, 1998 [on-line]).
The third factor the FTC looks for in deceptive advertising is materiality. As
mentioned earlier, a material misrepresentation is one that will likely effect the buying
decision of consumers. Examples of material misrepresentations include certain
claims and omissions of information, particularly those that involve safety and health
issues. An example would be a consumer who is very involved in environmental
issues and may only purchase environmentally safe products. If a product advertises
that it has reduced emissions of air pollutants by 70%, this may encourage the
consumer to purchase the product, when in fact the product may still be emitting a
high level of air pollutants. Additionally, "information is likely to be material if it
concerns durability, performance, warranties or quality" (Federal Trade Commission,
The FTC believes that if a consumer can easily evaluate a product, it is inexpensive,
and a regularly purchased item, the Commission will take a closer look at the
deception before filing a claim. The FTC believes that companies rely on repeat sales
of these items and therefore if they do not live up to their claims, consumers will not
purchase them again (Federal Trade Commission, 1998 [on-line]).
Many advertisers feel that they have safeguarded themselves against deceptive
advertising by providing money-back guarantees, warranties, and by adding
disclaimers to ads. According to the FTC this is not accurate. Money-back guarantees
do not eliminate deception. Sears and Roebuck learned this in 1980 when the FTC
noted that "a money-back guarantee is no defense to a charge of deceptive advertising.
A money back guarantee does not compensate the consumer for the often considerable
amount of time and expense incident to returning a major-ticket item and obtaining a
replacement" ((Federal Trade Commission, 1998 [on-line]). What a money-back
guarantee and a warranty may avoid however, is prosecution if the guarantee or
warranty is honored since the FTC looks more favorably on those that comply with
their guarantees and warranties.
Disclaimers, accurate text or small print do not remedy the effect of a false headline
either. The FTC has ruled that many reasonable consumers may only read the headline
and be mislead or deceived by the advertisement, therefore, the headline must also
make sure that it complies with fair advertising standards (Federal Trade Commission,
Deceptive Advertising Issues of the 90’s
The 1990’s have brought on some new targets for deceptive advertisers as well as a
new focus for the FTC and the BBB. The main targets of the 90’s include: antioxidant
claims; the diet industry for misrepresenting weight loss claims; environmental or
green marketing claims for products claiming that they are good for the environment
and are not; 900 numbers for misrepresenting the costs of phone calls, and the Internet
(Federal Trade Commission, 1998 [on-line]). In one year, United Weight Control,
Nutri/System, Inc., the Diet Center, Physician Weight Loss Clinic, Weight Watchers
International, Inc., and Jenny Craig had all been cited for deceptive advertising and
were made to modify their advertising and marketing practices. On one weight loss
television commercial, an average weight loss is printed on the screen so consumers
are not misled to believe that they will lose as much weight as the women/men in the
commercial (Federal Trade Commission, 1998 [on-line]).
The Internet has also been a major source of deceptive advertising, particularly in
regards to privacy issues. The Internet has allowed online companies to "collect and
use personal information about consumers, often without the consumers’ knowledge
or consent", and even use web sites as a guise to collect medical and financial
information, and even collect information about children (American Marketing
Association, 1998 [on-line]).
Besides the Federal Trade Commission, there are several other agencies that monitor
advertising and marketing practices. Next to the FTC, the Better Business Bureau
(BBB) is the key proponent of monitoring truth in advertising, and was the primary
reason that the BBB was formed. The National Advertising Review Council (NARC)
is another agency that was developed by advertising associations and the BBB to
foster "truth and accuracy in national advertising through voluntary self-regulation".
The National Advertising Division and the Children’s Advertising Review Unit
(CARU) are investigative arms of the self-regulating programs in place by the NARC.
The CARU was established in 1974 to promote responsible children’s advertising and
is particularly interested in protecting children’s privacy and rights taking into account
the vulnerability of the child audience. The FTC is the only legal enforcement arm of
deceptive advertising. All other groups rely on voluntary cooperation and self-
regulation (Better Business Bureau, 1998 [on-line]).
Competitors and consumers are also two important monitoring groups. Competitors
can be the best watchdogs for deceptive advertising in their industry and under the
Lanham Act, they are able to sue their competitors for making deceptive claims.
Consumers can also monitor companies and report any deceptive advertising or
marketing act directly to the Better Business Bureau or file a complaint with the
National Advertising Division who will investigate the accusation.
Liability & Penalties
So who is liable for deceptive advertising? Clearly, the company who’s product or
service it is, but it does not stop there. Advertising agencies are now being held liable
"if the agency participated in the creation of the advertising and knew, or reasonably
should have known, that the advertising was deceptive". It is the responsibility of the
ad agency to substantiate the claims that a company makes and not rely on the
advertiser’s word. Producers of infomercials are also held under scrutiny when a
deceptive advertising claim is made against an infomercial. Producers must ask for
information to back up the claims being made or risk being liable (Better Business
Bureau, 1998 [on-line]).
According to Section 5 of the FTC Act, unfair or deceptive advertising, or marketing
acts or practices are illegal and therefore subject to penalties. The penalties for
deceptive advertising and marketing practices include 1. Cease and desist orders ~ the
FTC can make a company pull an ad or stop a deceptive marketing practice
immediately. This also carries an $11,000 per day per ad penalty if a company
violates the law again. 2. Civil penalties, consumer redress, and monetary remedies.
This could include monetary payments of millions of dollars, to giving refunds to
consumers who purchased the product. 3. Corrective advertising, disclosures, and
other informational remedies. This may include purchasing additional advertising to
correct the misinformation or making the company inform those that purchased the
product about the deception. 4. Bans and Bonds: In really bad cases of deception, a
company may be required to leave the industry or post a bond before reentering the
business (Federal Trade Commission, 1998 [on-line]).
As this paper has demonstrated, deceptive advertising is an ongoing ethical, and in
some cases, controversial issue. What may appear to be a harmless advertisement to
one person or group, may be very misleading to another. With the increase in
technology and the ever-increasing use of the Internet, consumers remain prime
targets for deceptive advertising and marketing practices. Fortunately, the laws and
monitoring agencies continue to improve, and will continue to protect the consumer
from many deceptive advertising and marketing practices.
Real Case of Deceptive Advertising:
BEFORE THE FEDERAL TRADE COMMISSION
COMPLAINT SEEKING ACTION AGAINST THE
BANK OF AMERICA FOUNDATION
FOR DECEPTIVE ADVERTISING REGARDING ITS
FINANCIAL SUPPORT OF ANIMAL EXPERIMENTS
CONDUCTED BY THE MARCH OF DIMES
Federal Trade Commission
600 Pennsylvania Ave. N.W.
Washington, DC 20580
People for the Ethical Treatment of Animals, Inc.
Jeffrey S. Kerr, General Counsel
501 Front Street
Norfolk, VA 23510
December 30, 2002
NATURE OF THE COMPLAINT
1. This complaint requests that the Federal Trade Commission (Commission) take action against
the Bank of America Foundation’s (hereinafter "BOAF") ongoing deceptive advertising practice
of falsely representing that it does not fund national health organizations in an apparent attempt
to evade public criticism of its support for the March of Dimes, a national health organization
engaged in animal experimentation. For more than two years, People for the Ethical Treatment of
Animals, Inc. (hereinafter "PETA"), on behalf of its more than 750,000 members and supporters,
together with several other charities and their supporters, has conducted a nationwide educational
campaign to inform banking consumers that the BOAF provides millions of dollars annually to
the March of Dimes for use in animal experimentation. The growing national opposition to
animal experimentation makes the BOAF’s support of that practice a material factor in the
decision of compassionate consumers to conduct their banking elsewhere. PETA recently learned
that despite its ongoing, multi-million dollar support of the March of Dimes, the BOAF falsely
advertises that "[n]ational health organizations (or their local affiliates) or research/disease
advocacy groups" such as the March of Dimes are ineligible for BOAF support. Accordingly, the
BOAF advertisements are unlawfully deceptive and an appropriate subject of Commission
2. PETA is a nonprofit charitable corporation organized under the laws of Virginia and is exempt
from federal income tax pursuant to §501(c)(3) of the Internal Revenue Code. PETA is
headquartered at 501 Front St., Norfolk, VA 23510. PETA and its members are committed to
ameliorating the suffering of animals and ensuring their humane treatment. PETA has conducted
investigations into and campaigned extensively against the use of animals in experiments and
maintains several Internet Web sites that detail the horrific suffering and abuse inflicted on
primates, mice, rabbits, and other animals by the animal experimentation industry. Since
September, 2000, PETA has specifically directed its efforts toward protesting the March of
Dimes for funding experiments on animals. PETA maintains a Web site dedicated to this
educational campaign at MarchofCrimes.com. PETA files this complaint for itself and on behalf
of its members.
3. Upon information and belief, the BOAF is a private foundation established by the Bank of
America Corporation, a for-profit banking institution, for the purpose of managing all charitable
operations of Bank of America offices and branches around the United States. The BOAF is
located at 315 Montgomery St., 8th Fl., San Francisco, CA 94194-1866. According to its Web
site (www.bankofamerica.com/foundation), the BOAF is an extremely sophisticated
organization, boasting the largest philanthropic budget of any financial institution in the U.S. It
donated a total of $87.4 million in 2000 and more than $85 million in 2001. Control over the
BOAF’s funds is placed in the hands of local executives who determine where the funds go and
in what amounts. The BOAF also advertises that proposals not aligned with its focus will not
receive funding. For many years, the BOAF has been a large corporate sponsor of the March of
Dimes, including its annual Walk America walk-a-thon fundraising events. Upon information
and belief, local Bank of America offices across the country donate funds and send
representative teams of walkers to many of the individual walk events each year. According to
the March of Dimes, the BOAF generally contributes more than $1million each year to the
March of Dimes.
4. Jurisdiction is appropriate in this matter pursuant to the Federal Trade Commission Act, 15
U.S.C. § 41, et seq.
5. The advertisements in question have been disseminated, and continue to be disseminated via
the Internet, mail, and in person.
STANDARD OF REVIEW
6. An advertisement is unlawfully deceptive where there is a material representation, omission,
or practice that is likely to mislead a reasonable consumer who is a member of the particular
consumer group targeted or is likely to be affected by the ad. Omissions of material fact can be
as unlawfully deceptive as affirmative misrepresentations, particularly where the omitted
information is needed to discover that an ad’s claims are false.
7. As set forth in the Commission’s policy statement on deceptive advertising, the test for
materiality is "whether the act or practice is likely to affect the consumer’s conduct or decision
with regard to a product or service."
8. Intent to mislead is not required for an advertisement to be unlawfully deceptive, but it can be
a factor for the Commission's consideration. The Commission has acknowledged in its policy
statement that an interpretation of an ad claim will be deemed both reasonable and material if it
is the claim that the advertiser intended to convey.
9. Over the last 30 years, animal treatment issues have become an integral part of consumer
purchasing decisions on a wide variety of products and services. Especially prominent among
these considerations is the issue of animal testing, as demonstrated by the thousands of products
that are advertised as cruelty-free, having not been tested on animals. Therefore, an advertiser’s
statements or omissions concerning its support of or opposition to animal testing is a material
consideration in the purchasing decisions of millions of consumers on a daily basis. In short,
consumers purchase more than just an advertiser’s products or services, they also purchase the
advertiser’s corporate ethics.
PETA’S CAMPAIGN AGAINST THE MARCH OF DIMES AND THE BOAF
10. Since September 2000, as part of its educational program to convince charities to stop
funding experiments on animals, PETA has conducted an extensive national campaign against
the March of Dimes’ practice of funding animal experimentation. PETA’s efforts have included
hundreds of demonstrations and protests at the March of Dimes’ offices and events around the
country. PETA’s Web site at MarchofCrimes.com details the nature and extent of that campaign.
11. PETA’s campaign has focused attention on the cruelty and absurdity of March of Dimes-
funded animal experimentation, including sewing shut the eyelids of newborn kittens and killing
them one year later to study the effect on their brains (even though the March of Dimes admits
that no clinically relevant information came from such studies), and giving cocaine and alcohol
to pregnant rats to determine the effect of the drug on their offspring (although the use of such
substances by pregnant women is well-known to cause birth defects and other severe problems in
12. One aspect of PETA’s campaign has been to encourage consumers opposed to animal
experiments to pressure the March of Dimes’ major corporate sponsors to restrict their donations
for non-animal uses. This approach has achieved remarkable success, resulting in national March
of Dimes sponsors, including K-Mart, Sara Lee, and Jamba Juice, restricting their donations for
use in non-animal programs. Restricted donations are common among sophisticated charities like
the March of Dimes and the BOAF where funds are required to be used only for a specified
purpose or prohibited from being used for a particular purpose.
13. During Fall 2000, PETA learned that the BOAF is among the March of Dimes’ top five
corporate sponsors, donating more than $1 million per year. A March of Dimes news release
even reported that a senior Bank of America official was installed on the March of Dimes
national board of advisors. Therefore, PETA began contacting the BOAF to request that it halt its
donations to the March of Dimes or restrict them to non-animal uses.
14. Despite the positive responses of the other March of Dimes sponsors listed above, the BOAF
refused to meet with PETA on this subject and continued to fund the March of Dimes to the tune
of millions dollars each year through it’s local affiliates’ support of Walk America and possibly
other fund raising events. As a result, PETA began a national campaign encouraging its members
and the public to boycott the Bank of America (which is the source of funding for the BOAF)
until it changes its policy of donating funds to the March of Dimes that can be used in animal
experiments. PETA was a long time Bank of America customer prior to this campaign and
removed its business, totaling millions of dollars annually, from its local Bank of America
branch in protest of its support for the March of Dimes. Other corporate, charitable, and
individual Bank of America accounts also have been closed as a result of PETA’s campaign and
the revulsion of compassionate consumers to animal experimentation.
THE BOAF’S DECEPTIVE ADVERTISEMENTS
15. The contents of the BOAF Web site are clearly directed to existing and potential banking
customers and are designed to encourage people to begin or continue using the Bank of America.
As such, the Web site contents constitute a series of advertisements for the Bank of America and
the BOAF. A December 30, 2002, printout of the BOAF Web site is attached as Exhibit A with
the pages numbered sequentially for the Commission’s ease of reference. Upon information and
belief, the Web site advertisements discussed in this complaint have appeared in their current
form for several months at the least.
16. In the wake of PETA’s national campaign opposing the BOAF’s funding of March of Dimes’
animal experimentation, the BOAF Web site provides as follows:
a. The BOAF has adopted "new guidelines" to focus its resources on helping children succeed by
funding programs only in the following areas: early childhood development, economic and financial
education, and teacher development. Exhibit A, pp. 1-5.
b. The BOAF’s Application for Charitable Giving explicitly provides that "proposals not aligned with our
focus...will not receive funding." Id., at p. 4 (emphasis added). Included among the specifically
enumerated "Ineligible categories for funding" are "National health organizations (or
their local affiliates) or research/disease advocacy groups." (Emphasis added.) The
foregoing BOAF giving guidelines are hereinafter collectively referred to as "the Advertisements."
17. The March of Dimes is a national health organization, composed of local affiliates across the
country and, therefore, is ineligible for BOAF funding according to the Advertisements’ clear
18. Neither the Advertisements nor any other part of the BOAF Web site makes any mention
whatsoever of the BOAF’s support for the March of Dimes or any other national health
organization. This omission, together with the Advertisements’ stated funding guidelines and
exclusions, would lead any reasonable banking consumer concerned about animal
experimentation and the BOAF’s support of the March of Dimes to believe that the BOAF no
longer provides financial support to the March of Dimes, any of its local affiliates, or any other
national health organization that may be involved in funding animal experimentation.
19. Suspicious of the Advertisements, in November, 2002, a PETA member residing in New
York state contacted Raichelle Glover, the BOAF regional contact for New York (see id., at p.
11), to verify that the BOAF no longer funds the March of Dimes as represented in the
Advertisements. In response, Ms. Glover first mailed the person a copy of the Advertisements,
including the funding guidelines and the prohibition against funding national health
organizations. Upon receipt of the Advertisements, the PETA member telephoned Ms. Glover to
inquire specifically about the status of the BOAF’s support for the March of Dimes. Ms. Glover
informed the person that, in fact, the BOAF does still fund the March of Dimes through its local
affiliates and also funds the American Cancer Society, another national health
organization,contrary to the plain language of the Advertisements that state unequivocally
the BOAF’s prohibition of gifts to such ineligible organizations. Therefore, the
Advertisements are materially false and deceptive.
20. The consumers most likely to be misled by the Advertisements are those conscientious and
compassionate people who reasonably do not want to provide their banking business (and the
corresponding direct financial support) to a bank that donates millions of dollars to an
organization that funds experiments on animals. Being misled by the Advertisements is an
entirely reasonable response by such consumers, as the Advertisements specifically and
affirmatively state that national health organizations like the March of Dimes that conduct
experiments on animals are specifically excluded from receiving BOAF funds, and the
Advertisements omit any mention of the BOAF’s contributions to the March of Dimes contrary
to the Advertisements. When the Advertisements are taken at face value by reasonable
consumers, this omission precludes them from discovering that the Advertisements are false.
21. The materiality of the Advertisements’ deception is apparent. Whether the BOAF does or
does not provide unrestricted financial support to the March of Dimes and other national health
organizations that conduct or fund experiments on animals is a simple yes or no question, and the
reasonable consumer is eminently entitled to rely on the untruthful negative response contained
in the Advertisements, precisely because of this simplicity.
22. The essence of our laws prohibiting deceptive advertising is the right of consumers to make
informed purchasing decisions, including the selection of banking services. The BOAF
Advertisements induce consumers to make decisions based on misinformation by purposely and
grossly misrepresenting and hiding the BOAF’s support for the March of Dimes and other
organizations that fund animal experimentation.
23. The BOAF’s deceptive Advertisements injure compassionate consumers and PETA requests
that the Commission take all appropriate action to prohibit these and any similarly false and
Jeffrey S. Kerr, Esq.
General Counsel, People for the Ethical Treatment of Animals, Inc.
501 Front St.
Norfolk, VA 23510
Tel: 757-622-7382, Ext. 1490