Litigation Surveys & Rebuttals

When Do You Need a False Advertising Survey?


There are three kinds of false advertising claims that companies might make in their advertising or product packaging. But only one kind of claim may need a survey to provide evidence of false advertising. A recent false advertising lawsuit against a pregnancy test manufacturer demonstrates the kind of false advertising claim that may not need a survey, while a lawsuit against a beverage maker demonstrates the kind of false advertising claim that can be measured by a survey.

False Advertising in Pregnancy Testing

As the old adage states, “You can’t be a little bit pregnant.” But many expectant mothers still want to know how far along they are in their pregnancy, and they want to know as soon as possible. Clearblue Advanced Pregnancy Test with Weeks Estimator was designed with this in mind. A rival pregnancy test maker alleged that certain television advertisements and product packaging gave the impression that the product estimates how long a woman has been pregnant the same way that a doctor would estimate how long a woman has been pregnant. In a recent ruling, the court largely sided with the plaintiff in this matter.  

Three Kinds of False Advertising

There are three ways in which an advertisement or other promotional claim may be false:
    • Literal Falsity: If a claim is factually incorrect, it is literally false. To be considered literally false, a claim must be unambiguous, meaning that there is no room for alternative interpretations. For example, in the case of the pregnancy test, the plaintiffs alleged that the product advertising and packaging unambiguously communicated that the product measures weeks since pregnancy began in the same way that a doctor would measure weeks since pregnancy began. The court determined that the claim was factually incorrect, and therefore literally false. Literally false advertising claims are illegal.
    • Puffery: If a claim is so obviously false that no reasonable consumer would think it could be true, it is called puffery. For example, the famed “Joe Isuzu” campaign of the late 1980s featured a spokesman who made outrageous claims about Isuzu vehicles. One such example: “It has more seats than the Astrodome!” Certainly, “Joe Isuzu” made many claims, but because they were so outlandish as to be comical, they were deemed puffery. Puffery is legal.
    • Implied Falsity: If a claim is ambiguous, or open to interpretation depending on its context, then it might be impliedly false. In contrast to literally false claims, which clearly deceive consumers, impliedly false claims may be false, depending on how consumers interpret the message. For example, the makers of Polar Seltzer created an ad showing a polar bear throwing a can of Coca-Cola into a garbage bin. Text in the ad read “Keep the Arctic Pure.” Although the ad did not explicitly state anything about Coca-Cola, the context and imagery was deemed to imply that Coca-Cola is not pure, and was ruled to be false advertising. Impliedly false advertising claims are illegal.

    False Advertising Surveys

    Surveys are not needed to measure all three types of false advertising claims. The unambiguous nature of literally false advertising claims allows a judge or jury to determine falsity without regard to how the consumer audience might interpret the disputed advertising claims. Puffery, if properly understood as such, is not subject to the prohibition against false advertising. Only impliedly false advertising claims, because of their ambiguous nature, are tested through survey research. A survey is not used to determine whether an advertising claim is true or false. Rather, false advertising surveys can be used to determine the percentage of a relevant consumer universe that takes away a false understanding from an advertising claim. In other words, surveys determine the likelihood that a consumer would be deceived by a false advertising claim. If the percentage of deceived consumers, or the likelihood of deception, is high enough, a court may use those survey results as evidence of false or deceptive advertising.

    Conducting Your False Advertising Survey

    For help with your next false advertising survey, contact the survey experts at MMR Strategy Group.   Dr. Justing Anderson, Vice President
      Dr. Justin Anderson
    Vice President
    MMR Strategy Group

    © Copyright MMR Strategy Group, May, 2012. All rights reserved.