False advertising surveys are frequently used in intellectual property matters. This post describes the circumstances when false advertising surveys are typically used and explores the expectations and requirements for designing and executing a false advertising survey.
False advertising surveys focus on implied statements rather than literal falsity
By “false advertising”, I refer to the question of whether or not some type of communication – typically advertising, product packaging, or another form of marketplace communication – provides a false or misleading description or representation. False advertising is addressed in Section 43(a) of the Lanham Act. Typically, there are at least two types of falsity: literal falsity, when a communication is literally false, or implied falsity, when an item “… has a tendency to deceive a substantial segment of the target audience.”
Surveys are most often used for resolving matters involving implied falsity, because they measure the meaning that customers and prospects perceive from an item such as an ad or a package.
False advertising studies involving causality use a control
Matters involving false advertising typically ask whether or not a package, ad, or other type of stimulus causes an impression to be formed in the minds of the viewers. Because false advertising surveys examine issues involving causation, they typically must use a control.
The control is an item that is as similar as possible to the original stimulus, but removes the objectionable elements. For example, I once conducted a study that measured whether a consumer product had deceptive claims stated on its packaging. For this study, my false advertising survey tested two versions of the package: the actual package used in the marketplace, including the language disputed by the plaintiffs, as well as an otherwise-identical package that replaced any potentially-objectionable language with non-objectionable copy.
By comparing the difference between the two, my survey measured whether or not language used by the defendant caused certain impressions to be formed among relevant consumers.
You can learn more about controls in a brief video I’ve recorded.
False advertising surveys have a specific order
False advertising surveys typically follow a specific format, which involves showing a product or ad to respondents, then measuring their impressions immediately after they have seen the stimulus. Often, the item is presented in a format that matches marketplace conditions. For example, if the survey involves a food item typically seen in grocery stores, the false advertising study might show the item to respondents in an in-person setting. By contrast, if the item is software or an online service, the study is more likely to be conducted online.
After showing the stimulus, a false advertising study usually asks general questions first, such as, “What are the main messages conveyed by the advertisement?” Questions such as these, which are answered in the respondents own words, can help measure:
- whether the respondent is paying attention,
- whether the respondent understands the main purpose of the ad, and
- the main messages conveyed by the ad.
Because this type of open-ended question is answered with verbatim comments, the resulting data can be analyzed in a quantitative manner by “coding”, which counts the number of responses that reflect specific themes of interest.
Most (but not all) false advertising studies will progress from general questions to more specific questions about certain messages possibly communicated by the ad, such as how a product or service operates, how it compares to alternatives, or the benefits provided by the product or service.
Most (but again, not all) false advertising surveys include questions to measure both the messages conveyed by the item, and the materiality of those messages. By materiality, I mean whether the messages are likely to affect marketplace purchase decisions in a meaningful way. For example, a false advertising survey might ask respondents whether certain information would affect their likelihood to purchase an item, or to recommend an item for purchase in their organizations. There are many different ways to phrase questions involving materiality.
What does this mean for your false advertising survey?
Litigation surveys, such as those used to measure false advertising or other types of advertising claims, must follow a specific and detailed set of standards that are specific to the context and differ from traditional market research. You can learn more about these standards in the “Reference Guide on Survey Research”, by Shari Seidman Diamond.
This post has provided just a few examples of the many elements to be considered in designing and executing a false advertising study. As you consider these elements, keep in mind that every study must reflect the specific conditions involved in the matter, the industry, and the product involved.
Dr. Bruce Isaacson
MMR Strategy Group