misleading advertising case study

National & World Affairs

Where’s the beef.

Lecturer Louis Tompros discusses a recent lawsuit against a fast-food giant and the role class actions play in the U.S. legal system

Is Burger King selling you a Whopper of a tale? A juicy class action lawsuit filed in March 2023 alleges that the fast-food chain’s signature hamburger contains 35% less meat than the company’s ads suggest. On August 23, a federal judge in Florida allowed the lawsuit , Coleman et al v. Burger King Corporation , to move forward based on the company’s in-store marketing and menus. Filled with mouthwatering legal issues, the Burger King case is one of several class action suits filed by the same law firm, including similar cases against Arby’s, McDonald’s, Taco Bell, and Wendy’s, each alleging that the fast-food purveyors falsely represented the size of their meat-based products.

Intellectual property expert  Louis Tompros , a lecturer on law at Harvard and a partner at WilmerHale, says that class action false advertising lawsuits often, but not always, play an important role in compensating consumers and preventing companies from committing further harm. In a recent conversation, Tompros discussed the Burger King lawsuit, how class action lawsuits work, and the legal concept of “puffery” in advertising.

Harvard Law Today: At first glance, what is your impression of the case?

Louis Tompros: It’s a very interesting case and falls into a general category of false advertising class actions. Sometimes, consumer product class action cases serve an important purpose to keep advertising honest. Other times, the cases are a little bit more opportunistic, and have more to do with going after big pockets. This is an interesting one, because it involves advertising that is on the line between a pretty clear factual statement, and something that’s not a factual statement. If what Burger King was doing was falsely stating how many pounds of meat went into each burger, it’d be a straightforward false advertising claim. And you would imagine that Burger King would settle very quickly if the claims were false, or they would fight to the end if, in fact, the claims were true. What makes this interesting is that the claim that Burger King is making in its advertisement is fuzzier as to whether it really is or is not a factual claim. And it’s those kinds of cases, where the advertisement is somewhere between a clear factual claim and pure puffery, where you find some of the most interesting cases.

It reminds me of the Red Bull case from roughly 10 years ago. Red Bull had used the slogan “Red Bull gives you wings,” and a class action was brought against them, saying that people had been drinking Red Bull for a long time and never got actual wings. Ultimately, Red Bull settled that case for a very significant amount of money. That was interesting, as well, because “Red Bull gives you wings” is one of these factual statements that most people would think is a metaphor, and it was therefore on the line between a clearly provable, relevant, factual statement and one that is not so.

HLT: Now that the judge has restricted this to in-store advertising, could Burger King argue that the plaintiffs had already decided to go to and enter the restaurant, so they were clearly planning to make a purchase before they had a chance to be influenced?

Tompros: The plaintiffs will have to convince a jury that they were standing there in the store, they looked at the picture on the menu, and if the picture on the menu had shown the burger with the size of meat that it actually had, they would not have bought that burger. They don’t have to prove that the person would have walked out of the store, only that the person wouldn’t have bought that specific burger. Deciding what the truth is will be up to the jury.

“The plaintiffs will have to convince a jury that they were standing there in the store, they looked at the picture on the menu, and if the picture on the menu had shown the burger with the size of meat that it actually had, they would not have bought that burger.”

HLT: Would it matter if the plaintiffs had purchased the burgers before, and therefore had some foreknowledge of their actual size, regardless of the advertising?

Tompros: There’s a variety of different claims in this lawsuit, the two most prominent being false advertising and breach of contract. For the false advertising claim, it may matter if the customers had previously seen the same picture and bought the burgers, because that would tend to show that they were not deceived in a way that affected their purchasing decision. So, if you’re telling me that this burger that has a certain amount meat, and I buy it, I get the burger, and it has a smaller amount of meat, then I go back and I buy it again and again, by the 10th or 12th time, I know that the picture does not look like what I’m going to get. And so, it’s wrong for me to say that that picture influenced my purchasing decision.

In the contract case, what the plaintiffs will have to show is that the picture operated as an offer, that the offer was a very specific offer of a burger with a particular amount of meat, and that the customer accepted the offer by ordering and paying for it with that picture in front of them. If I were Burger King, and the same customer who saw the same picture bought the burger 10 different times in the past, I would argue that the contract, as informed by the party’s prior performance, did not include this larger amount of meat. So, yes, the fact that somebody bought one of these burgers before having seen the picture and didn’t complain about it may affect the outcome. It’s not dispositive. It just goes to their credibility when now they come in and say they wouldn’t have bought it if they had known that it was going to look like it did.

HLT: The supposed damage in this case for each plaintiff is less than the cost of one burger. Is there a minimum level of damage for which one can file a lawsuit?

Tompros: As a matter of principle, there’s no minimum amount that you can sue somebody for. That’s why we have things like small claims courts. You are allowed to bring a case for a small amount of money. But as a practical matter, it very often isn’t worth it, because the filing fees and the attorney’s fees often dwarf the value of the case. Usually, that means that when we’re talking about small amounts per customer, the case will need to involve a large number of people, which is why this case has been brought as a class action. Under the federal Class Action Fairness Act, most class actions must allege a total amount of harm of more than $5 million across the class. And the plaintiffs in this case did make that allegation. Another requirement is that there must be at least 100 people in the class, which the plaintiffs also allege.

One of the reasons why class actions exist is to address small amounts of harm affecting a large number of people. We want it to be possible to have some legal remedy for those harms. So, we have the class action procedure to allow for that. Just because something is not worth bringing the lawsuit over in an individual case, you don’t want to let somebody get away with doing it thousands and thousands, or even millions of times.

“One of the reasons why class actions exist is to address small amounts of harm affecting a large number of people.”

HLT: One of Burger King’s arguments is that everyone knows that “[f]ood in advertising is and always has been styled to make it look as appetizing as possible.” Where is the line between making a product as attractive as possible and false advertising?

Tompros: There is a concept in false advertising law known as puffery. Puffery is intended to attract more consumers rather than to intentionally deceive them about a fact. And, generally speaking, puffery is fine. Whereas intentional deception about a fact is false advertising and is improper. Let me give you a couple of examples. For decades, cereal companies have made advertisements where they show milk being poured into their cereal. If you actually pour milk into a bowl of cereal and try to film it, it doesn’t look very good because milk is kind of thin and it usually does gross things to the cereal. Those commercials for years have used glue instead of milk because it’s thicker and you get a gorgeous picture. Even in the context of fast food, there are photoshoots of burgers in which each sesame seed is very carefully glued on to the bun in a particular configuration to look very appetizing. And there are chemicals that look like water that are placed on the tomatoes to make them look like they’ve just been washed and are fresh and beautiful. And the cheese is sometimes replaced by icing or putty or something else.

So that kind of puffery has happened all the time. It is well established that it is not generally speaking false advertising, because false advertising has to convey a specific statement of fact. That’s why in the Burger King case, the plaintiffs are not alleging that the burger didn’t look generally like the photo, and they’re not alleging that the burger didn’t look as appetizing as the one in the photo. Both of those claims would have been rejected if Burger King had argued that the photos are just puffery. What the plaintiffs instead allege is a much more specific allegation that the ratio of meat and the size of meat to the rest of the burger was misrepresented. What the plaintiffs claim is that the photo was representing a fact about the size of the patty, and that that fact was false. And that’s the distinction here that matters.

“Puffery is intended to attract more consumers … generally speaking, puffery is fine. Whereas intentional deception about a fact is false advertising and is improper.”

HLT: What role do class action lawsuits play in the U.S. legal system?

Tompros: The fundamental purpose of class actions is to allow for the resolution of harms that happen in small amounts to a large number of people. And there have been some class actions that have been hugely important over the years. For example, the auto industry class actions of the 1970s were instrumental in making automobiles safer. And I think there’s general consensus that that was a good thing. They gave some financial redress to people who had been harmed. But more importantly, they resulted in the manufacture of safer automobiles and the auto industry taking more seriously things like recalls, because they know that they will be liable across the board for problems.

There have also been some class actions that have, in my view, been of somewhat questionable value. And here I think of, for example, the Red Bull class action from 2014, in which Red Bull did indeed change its advertising and no longer says “Red Bull gives you wings.” It’s not clear to me that that provided any real value to society or provided any real value to the consumers that were supposedly deceived. So, class action false advertising lawsuits can have incredibly important impacts on industry, the economy, and consumers. But they can also be a drain. And where you draw the line is the challenge.

HLT: It seems the biggest impact can be changing corporate behavior. What kind of redress do the plaintiffs typically receive?

Tompros: Class actions are often primarily about changing company behavior and creating a disincentive because of the need to pay out money when companies to engage in misleading or unsafe behavior. The named plaintiffs in class actions usually get somewhat better compensation as a result of being the named plaintiffs, as compared to unnamed individual class members. And so there is some advantage to those plaintiffs to being involved. Although many named plaintiffs want to be involved in class actions just to do the right thing and hold the defendant accountable. And, of course, as part of class action settlements or resolutions, there are almost always significant attorney’s fees involved. So, there’s a real incentive for class action law firms to bring consumer class actions because they are very well compensated, as they clearly should be in the cases that are meritorious and societally beneficial. But that also leaves room for, to put it bluntly, shenanigans, including overly aggressive class action lawsuits that don’t have a lot of merit and are driven by the lawyers and their desire for the fees rather than by a real, meritorious effort to hold a company accountable for harmful conduct. There are some class action cases where the lawyers probably were undercompensated for the amount of good that they were able to do based on the impact that the case had. But there are some where the case was really driven by the lawyers’ fees and were settled because the defendants would rather get rid of the litigation than spend more on their own attorneys’ fees defending against it.

HLT: On that note, do you think it is a coincidence that this lawsuit is being spearheaded by the same firm which is also involved in lawsuits against McDonald’s, Taco Bell, Wendy’s, and Arby’s, all alleging that the amount of meat in their food items is less than pictured in those companies’ ads?

Tompros: There are firms that specialize in class actions and they very much do drive the identification of potential class action plaintiffs and the filing of those suits. And they’re usually pretty forthright about it and advertise themselves. You may have seen late night TV ads that say, “Were you injured after taking X medication? If so, please call this firm.” The firms behind those ads are often looking for named plaintiffs for class action litigation. Usually, the law firms will identify what they perceive as a problem, and then hunt for people who have the receipts to be able to show that they were injured. So, it’s not surprising to me that the same firm has brought multiple cases of this nature against multiple different defendants. I’d be surprised if they hadn’t, quite honestly, because it takes a lot of expertise and a lot of experience to be able to bring these kinds of class actions.

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5 Misleading Advertising Examples

Misleading practices in the world of digital advertising have become increasingly prominent. For example, 17% of global ad impressions in April-June 2022 were found to be fraudulent.

But the industry has more to worry about than fraudulent impressions, with misleading advertising another major cause for concern. Misleading advertising, which can range from exaggerated claims to outright falsehoods, poses a serious challenge to consumer trust and the integrity of the advertising industry itself.

To understand more about misleading advertising, the tactics behind them and their impact, we’ve compiled a list of examples. These examples highlight the importance of ethical advertising practices and the need for vigilance against deceptive tactics in an industry where honesty is crucial.

What Is Misleading Advertising? 

Misleading advertising refers to the use of fraudulent or deceptive information in digital or traditional marketing to influence consumer behavior in a way that they wouldn't have otherwise. This type of advertising can compel consumers to make purchases based on incorrect or misleading information. 

False or misleading advertising can take various forms, including omitting crucial product or service information, and it applies across different advertising mediums such as magazines, catalogs, physical and digital advertisements, and websites.

But this is not just about outright lies or false claims. It can also involve more subtle forms of deception, such as presenting information in a way that the average consumer is likely to misinterpret, using small print to hide important terms, or making comparative claims without a clear basis. 

5 Misleading Advertising Examples 

1. volkswagen.

Renowned automotive brand Volkswagen faced significant legal challenges owing to its misleading advertising practices. The core issue revolved around its "clean diesel" campaign, which falsely advertised certain VW and Audi diesel vehicles as environmentally friendly and compliant with emissions standards.

The US Federal Trade Commission (FTC) revealed that Volkswagen's claims of low-emission, environmentally-friendly diesel cars were based on the use of a "defeat device” . This device manipulated emissions testing, making the vehicles appear compliant with environmental standards when, in reality, they were not.

This deceptive practice led to a massive false advertising case, resulting in Volkswagen's agreement to a settlement that included significant financial compensation for affected car owners and lessees.

Deceptive advertising, as in Volkswagen's case, is not just a rare occurrence but a serious issue in the industry. It highlights the importance for brands to maintain honesty and transparency in their advertising. Misleading consumers can lead to severe legal repercussions, financial losses, and reputational damage.

The consequences for Volkswagen were substantial. It faced a record-breaking fine, with the FTC announcing a partial settlement that required Volkswagen to return as much as $10 billion to the owners and lessees of affected vehicles. Not to mention, Volkswagen's reputation suffered a significant blow, eroding consumer trust and tarnishing the brand's image globally.

2. Red Bull

Red Bull is a globally recognized energy drink brand known for its catchy slogan, "Red Bull gives you wings”. The brand has built a strong presence in the market through its unique marketing strategies and sponsorships of various high-energy sports and events.

In a notable case, Red Bull faced a class action lawsuit over its advertising claims. Benjamin Careathers, David Wolf, and Miguel Almaraz filed the lawsuit, alleging that Red Bull falsely advertised its energy drinks as offering specific functional benefits, such as improved physical performance and reaction time, that persuaded consumers to pay a premium price for the product. The plaintiffs argued that these claims were deceptive and lacked scientific backing.

Red Bull agreed in 2014 to pay $13 million to settle the lawsuit, although the company denied any wrongdoing or liability. As part of the settlement, affected consumers who had purchased a Red Bull product since January 1, 2002, were eligible for a $10 cash payment or a coupon worth $15 in Red Bull products. The company maintained that its marketing and labeling had always been truthful and accurate, and the settlement was to avoid the cost and distraction of litigation.

While Red Bull remains a popular brand, this lawsuit brought attention to the need for more transparency in advertising claims. The case serves as a reminder for brands to carefully consider the accuracy of their marketing messages and the potential impact on their reputation and consumer trust.

Kellogg Co., a prominent name in the breakfast cereal industry, faced federal charges for falsely advertising the benefits of its Frosted Mini-Wheats cereal. The FTC announced that Kellogg had agreed in 2009 to settle these charges , which centered around misleading claims in their advertising.

Kellogg's national TV ads claimed that eating Frosted Mini-Wheats could improve children's attentiveness by around 20% compared to those who skipped breakfast. However, the FTC found that these claims were exaggerated. The study the ads referenced showed that only about half of the children experienced any improvement in attentiveness, and only 11% saw the 20% improvement claimed in the ads.

This incident serves as a reminder of how important it is for brands to back up their advertising claims with credible data, especially when they relate to health benefits. Misleading advertising can lead to significant legal consequences and damage to a brand's reputation.

For Kellogg, this case resulted in it needing to adjust its marketing strategies and reinforce the importance of maintaining integrity in advertising. It also served as a reminder to the industry about the potential consequences of overstepping the boundaries of truthful advertising.

4. Johnson & Johnson

Multinational Johnson & Johnson is known for its wide range of consumer goods, medical devices, and pharmaceutical products. Among its most iconic products is Johnson's Baby Powder, a staple in many households for decades.

Johnson & Johnson faced significant controversy over its Baby Powder product. The company was accused of targeting specific demographics, particularly African-American and overweight women, for its talc-based Baby Powder. This strategy was pursued despite emerging concerns about the product's safety.

Targeting specific demographics is a common marketing practice. However, when it involves a product with potential health risks, it raises ethical concerns. Companies must balance marketing strategies with the responsibility to provide accurate information about their products, especially when there are health implications.

Numerous lawsuits were filed against Johnson & Johnson, alleging that its Baby Powder and Shower to Shower products caused ovarian cancer or mesothelioma. A Reuters investigation further revealed that small amounts of asbestos had been found in the company’s talc products, information that was not disclosed to the public or regulators. This led to a significant public backlash and legal battles, with Johnson & Johnson facing thousands of lawsuits that eventually prompted it to discontinue talc-based baby powder .

5. L'Oréal

L'Oréal, a global leader in the cosmetics industry, is known for its extensive range of beauty and skincare products. The brand has established a strong presence worldwide, catering to a diverse consumer base with its innovative and quality products.

In 2014, L'Oréal faced scrutiny over its advertising claims for two of its skincare products: Lancôme Génifique and L’Oréal Paris Youth Code.

The company marketed these products as being "clinically proven" to "boost genes”, leading to "visibly younger skin in just seven days”. These bold health claims caught the FTC’s attention, which challenged their validity.

The beauty and skincare industry often sees exaggerated claims about product benefits. However, L'Oréal's case was significant owing to the specificity of the claims about genetic enhancement and rapid, visible results. Such assertions, especially when lacking scientific backing, can mislead consumers.

The FTC's investigation concluded that L'Oréal's claims were "false and unsubstantiated” . As a result, L'Oréal USA was barred from making future anti-aging claims without solid scientific evidence. While the company avoided a monetary fine, it faced the risk of paying up to $16,000 for each future violation.

Final Thoughts

The above examples are some of the most notorious cases of misleading advertising from some of the world’s biggest brands.

Each case study provided insight into how these brands faced legal and reputational challenges. From Volkswagen's emissions scandal to L'Oréal's exaggerated skincare claims, each case underscores the importance of honesty and transparency in advertising.

Misleading advertising can have far-reaching consequences, not just for consumers who may be swayed by false claims but also for the brands themselves. Legal repercussions, financial penalties, and loss of consumer trust are just some of the potential outcomes.

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What Is the Most Famous Misleading Advertising Example?

One of the most famous examples of misleading advertising is the Volkswagen emissions scandal. This case gained widespread attention owing to the scale of the deception and the prominence of the brand involved. Volkswagen admitted to using software in their diesel vehicles that cheated on emissions tests, misleading both the consumer and regulators.

Is Misleading Advertising Unethical?

Yes, misleading advertising is unethical because it deceives consumers and can lead to uninformed or harmful decisions. Ethical advertising should be transparent, truthful, and provide accurate information to help consumers make informed decisions. 

What is the Punishment for Misleading Advertisements?

The punishment for misleading advertisements can include fines, legal settlements, and, in some cases, criminal charges. The severity of the punishment typically depends on the extent of the deception and the laws of the country where the advertisement was published.

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False or misleading claims

• Businesses shouldn't try to gain an unfair advantage by making misleading claims about their products or services.
• Claims should be true, accurate and based on reasonable grounds.
• A business must be able to prove any claim they advertise.

What the ACCC does

• We provide general guidance to businesses and consumers on how consumer law operates, including avoiding false or misleading claims.
• We accept reports from businesses and consumers about possible misleading or false claims. We use those reports to inform our education, compliance and enforcement work.
• We can require businesses to back up claims they make about their products or services.
• If a business misleads, we can investigate and may take some form of compliance or enforcement action .

What the ACCC can't do

• We don’t resolve individual disputes about misleading claims.
• We don’t provide legal advice.

On this page

False claims and misleading impressions, businesses mustn't mislead consumers.

Businesses should be honest in their dealings. Businesses shouldn't try to gain an unfair advantage by making misleading claims about their products or services.

It makes no difference whether a business intends to mislead or not.

Information must be accurate and truthful

Any information or claim that a business provides about its products or services must be accurate, truthful and based on reasonable grounds.

This includes:

• Information on prices
• images and descriptions of what is offered
• claims about the value, benefits, qualities or performance of products and services
• shipping options and delivery times.

This rule applies to any communication by a business, including through:

• advertising
• product packaging
• a quotation
• any information provided by staff, whether verbally or in writing
• social media
• testimonials
• websites or any other platform.

Any statement that creates a false impression about goods and services can be breaking the law.

Case study of a misleading claim

In June 2022, Samsung Electronics Australia Pty Ltd was ordered by the Federal Court to pay $14 million in penalties for misleading water resistance claims about its mobile phones. Samsung admitted to the court that its ads misrepresented the water resistance of its phones.

Samsung published 9 ads online and in-store. The ads showed the use of various Samsung Galaxy phones in pools and sea water. One Samsung ad showed a person surfing alongside the statement: “Do everything you love this summer on the Galaxy A5. Whether its listening to your favourite song by the pool or capturing your Sunday surf session at the beach”.

Pool and sea water could, in fact, damage the phones by corroding the charging ports.

Read more in the ACCC media release about Samsung .

Silence can be misleading

In some circumstances, failure to disclose information can be misleading. This is particularly the case if a business provides some information to a consumer but doesn't mention important details the consumer should know that are relevant to their decision.

Example of silence being misleading

A buyer wants to purchase a car for a particular purpose and he tells this to the car dealer. The car dealer knows the car isn’t suitable for John's purpose, but doesn’t say this. The car dealer's silence can amount to misleading conduct.

Wildly exaggerated claims (puffery)

‘Puffery’ refers to wildly exaggerated and vague claims about a product or service that no one could treat seriously. For example, a restaurant claims they have the ‘best steaks on earth’. These types of statements are generally not considered misleading.

Advertising techniques that can mislead

Price claims.

Price is an important factor in consumer decision making. Businesses should take extra care not to make misleading statements about price.

Misleading price claims may happen if products are:

• offered 'free' but on closer examination 'conditions apply'
• promoted at a ‘sale’ price which is not actually a temporary sale price, or
• advertised or displayed at a particular price, but GST or other costs are not included in that price.

A business shouldn’t mislead customers about savings on products or services.

For example, a business may advertise a sale by using statements such as 'WAS $275 NOW $149'. This implies the buyer will save the difference between the higher and lower price.

The advertised savings may be misleading or deceptive if the product or service:

• has never been sold at the higher price, or
• was sold in a limited amount at the higher price immediately before the sale

Find out more about misleading prices and price displays .

Fine print and qualifications

Many advertisements include some information in fine print.

Information in fine print and qualifications must not conflict with the overall message of the advertisement.

Examples of information in fine print being misleading

• An advertisement states that a product is 'free'. An extra payment is mentioned in the fine print. The advertisement is likely to be misleading.
• An advertisement states that a discount promotion is ‘storewide’ or ‘X% off all products’. Excluded products or brands are mentioned in the fine print. This may also be misleading.

Comparative advertising

Some advertisements may compare products or services to others on the market. 

Comparisons may be about any factors including:

Comparative advertising, sometimes referred to as comparison advertising, can be misleading if:

• the comparison is inaccurate, or
• it doesn’t compare products fairly.

Bait advertising

Bait advertising is the practice of promoting prices, often ‘sale’ prices, on products that are:

• not available, or
• available only in very limited quantities.

It is not misleading if the business is upfront and clear about the product being:

• in short supply, or
• on sale for a limited time.

Country or place of origin

It is illegal to make false or misleading claims about country or place of origin.

Find out more about country or place of origin claims .

Premium or benefit claims

A business must be able to prove a claim of a product having a particular quality or benefit.

Premium claims may suggest a product:

• is safer, for example, ‘non-toxic’
• offers a moral or social benefit, for example, ‘free-range eggs’ or 'cruelty free'
• has a nutritional benefit, for example, ‘fat free’
• is 'green' or environmental, for example, ‘100% recyclable’
• is therapeutic, for example, ‘the fastest pain reliever’

A premium claim may also promote a product as being of a perceived quality. For example, ‘Swiss chocolate’ or ‘Belgian beer’.

Premium claims should be true, accurate and based on reasonable grounds.

Businesses should also ensure that claims are specific and don’t use vague language. Broad vague terms have limited value and may mislead consumers, as they rarely provide enough information for consumers to understand how the claim connects with or affects the product or service. For example, the general statement ‘against animal testing’ may be too vague to clearly communicate to consumers whether the specific product has been tested on animals.

Claims about the future

A business that makes a claim about future matters (including predictions or projections) must have reasonable grounds for making the claim at the time of making the claim. The business is responsible for showing that it had reasonable grounds to make the claim.

Businesses need to make sure they adequately address the range of uncertainties and variables involved when making claims about the future.

How businesses can protect against making a false claim

Businesses can take steps to make sure they don't make a false or misleading claim.

What a business shouldn’t do

Businesses shouldn’t:

• guess the facts
• omit relevant information
• make ambiguous or contradictory statements or use jargon that consumers wouldn’t be able to understand
• make vague or unclear claims
• make promises they can’t keep, or make predictions without solid evidence
• offer goods or services knowing they can’t supply them
• impersonate or pretend to be a different business or brand.

Don’t make false claims about:

• the price of any products or services
• the quality, style, model or history of a product or service
• whether the goods are new
• the sponsorship, performance characteristics, accessories, benefits or use of products and services
• whether goods are in stock or when they may be supplied, including estimates about delivery timeframes
• the availability of repair facilities or spare parts
• the need for the goods or services
• any exclusions on the goods and services
• a consumer’s rights , warranties or remedies .

What a business should do

Businesses should:

• give current and correct information
• use easy to understand language
• check that the overall general impression is accurate
• be specific with claims to avoid misunderstandings
• back up claims with facts and evidence
• note important limitations or exemptions
• keep consumers updated if things change. For example, if the business will no longer be able to supply a product within the timeframe provided to the consumer.
• correct any misunderstandings
• be prepared to prove claims.

Guides for business

We have a guide to help business owners avoid misleading customers.

Advertising and selling guide

Businesses must also consider how any claims they make may impact on consumers experiencing vulnerability.

Consumer vulnerability: A business guide to the Australian Consumer Law

Penalties for false or misleading claims.

There can be penalties for businesses that mislead consumers. Find out more about the penalties that may apply .

Next steps if you see a false or misleading claim

Contact the business.

If you see a false or misleading claim, the first step is to contact the business to explain the problem.

If the business doesn’t resolve the problem, there are more steps you can take.

Report false or misleading claims to the ACCC

Anyone can make a report to the ACCC about a false or misleading claim.

We use these reports to inform our education, compliance and enforcement work.

Online product and service reviews

Social media promotion

Unfair business practices

Country of origin claims

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14 False Advertising Scandals That Cost Brands Millions

In advertising, there's a big difference between pushing the truth and making false claims. Is a product really "scientifically proven," and are "results guaranteed"?

For companies that cross the line, it can cost millions. Major brands have had to pay up, facing scrutiny from competitors and the FDA.

Most of us have been victims of false advertising. The question is, will companies change their marketing policies, or continue to prioritize profits over the consumer's right to know?

It doesn't pay to deceive the public.

We found 14 major brands that have faced false advertising scandals -- some are still ongoing, and not all companies have had to pay up, but each has dealt with a fair amount of negative publicity.

Activia yogurt

Dannon's popular Activia brand yogurt lured consumers into paying more for its purported nutritional benefits -- when it was actually pretty much the same as every other kind of yogurt.

Falsely touting the "clinically" and "scientifically" proven nutritional benefits of the product, Dannon even got a famous spokesperson, Jamie Lee Curtis, for the supposed digestion-regulator. But after a while, some customers didn't buy it.

A class action settlement last year forced Dannon to pay up to $45 million in damages to the consumers that filed the lawsuit and others who said they'd been bamboozled. The company also had to limit its health claims on its products strictly to factual ones.

Source: ABC News

Taco Bell's seasoned beef

When consumers raised questions about what was actually seasoning Taco Bell's seasoned beef, the company didn't know how to respond.

It was simply using oat filler -- which means the meat isn't seasoned beef at all, according to USDA standards. The franchise had been tricking its consumers into thinking its products were of a higher grade than they actually were.

Taco Bell took the opportunity to poke fun at itself, hoping to mitigate the PR disaster. The company even took out a full-page newspaper ad thanking complainants for suing. So far, so good. Taco Bell's proactivity and willingness to address the controversy have restored some faith in the fast food giant.

The woman who started all the hullabaloo ultimately dismissed her lawsuit.

Source: Ad Age

Definity eye cream

In 2009, an Olay ad for its Definity eye cream showed former model Twiggy looking wrinkle-free -- and a whole lot younger than her years (she turns 62 next week). Turns out the ads were retouched.

British lawmakers yanked digitally altered spots, citing not only a gross misrepresentation of products, but the ad's potentially negative impact on people's body images.

Source: Yahoo! Shine

Hyundai and KIA vehicles' horsepower

Hundreds of car owners were extremely disappointed to find out that Hyundai and Kia overstated the horsepower in some of their vehicles.

In 2001, the Korean Ministry of Construction and Transportation uncovered the misrepresentation, which for some models was as much as 9.6 percent more horsepower than the cars actually had.

A class action lawsuit in southern California claimed the companies were able to sell more cars and charge more per vehicle because of the false claims. In the end, the auto powerhouses had to pay customers -- the settlement was estimated to be between $75 million and $125 million.

Source: GirardGibbs.com

Groupon's tourism ads

Groupon was sued by a San Francisco-based tour company earlier this year for allegedly running misleading ads on Google. Groupon's accused of using keywords related to certain tourist attractions to trigger ads, while not actually offering coupons related to any of those attractions.

The class-action suit is currently ongoing -- it was approved by a judge in August after Groupon tried to get it dismissed.

Sources: MediaPost , AdWeek

Rice Krispies & Frosted Mini-Wheats

Kellogg's popular Rice Krispies cereal had a crisis in 2010 when it was accused of misleading consumers about its immunity boosting properties. The Federal Trade Commission ordered Kellogg to halt all advertising that claimed that the cereal improved a child's immunity with "25 percent Daily Value of Antioxidants and Nutrients -- Vitamins A, B, C and E," stating the the claims were "dubious."

Just a year prior, the company settled with the FTC over charges that its Frosted Mini-Wheats cereal didn't live up to its ads. The campaign claimed that the cereal improved kids' attentiveness by nearly 20%, and was shot down when the FTC found out that the clinical studies showed that only 1-in-9 kids had that kind of improvement -- and half the kids weren't affected at all.

Source: CNN

Herbal supplement Airborne was a national hit throughout the 1990s. Marketing of the product claimed that it helped ward off harmful bacteria and germs, preventing everyday ailments like the flu and common cold. But did Airborne actually have these benefits?

Apparently not, which sparked a huge false advertising scandal. There were no studies to support Airborne's effectiveness that met scientific standards -- so the Center for Science in the Public Interest (CSPI) got involved.

The high-profile scandal ended with a huge settlement, with Airborne having to pay $23.3 million in the class-action lawsuit, and an additional $7 million settlement later. The exact benefits to users of Airborne remain unestablished.

Source: NPR

Extenze has claimed to be "scientifically proven to increase the size of a certain part of the male body."

But in 2010, the company had to pay a $6 million settlement to disappointed, less-endowed men everywhere.

Source: BNET

The Sugar Association says Splenda's "Made from Sugar" slogan is misleading, and that the sweetner is nothing more than "highly processed chemical compound made in a factory," reports CBS . 

In 2008, the association first filed a suit against Johnson & Johnson subsidiary McNeil Nutritionals, which then countersued the association engaging in a "malicious smear campaign." The two parties reached a confidential settlement before going to trial.

Equal also took its rival to court in 2007, accusing "the makers of Splenda of confusing consumers into thinking its product was healthier and more natural than other artificial sweeteners." The two parties also reached a confidential settlement . 

Pennzoil was ordered to pull ads that showed their oil performing better than their competitors after a New Jersey judge called them "false and misleading" and "repugnant." Houston-based Pennzoil was claiming superiority over four different brands, including New Jersey-based Castrol . Pennzoil is no longer allowed to claim that their oil is better at protecting car engines than Castrol. Brett Favre is shown in the television and internet ads, using Pennzoil as face paint before the big game.

Source: Houston Chronicle

New Balance

A New Balance sneaker that reportedly helped users burn calories were called out when studies did not find any boosted health benefits from wearing the shoe. The toning sneaker, claimed to use hidden board technology , were advertised as calorie burners that activated the glutes, quads, hamstrings and calves. Plaintiffs discovered that the shoe was instead an injury hazard, without any secret technology, and are seeking $5 million in compensation. The sneakers cost about $100.

Source: Reuters

Despite claims to the contrary , Kashi Company's "All Natural" products were chock full of "almost entirely synthetic and unnaturally processed ingredients," according to to the class action lawsuit filed against them. In fact, ingredients that are considered prescription drugs and federally-classified hazardous substances were found to be the primary ingredients in the so called "natural" foods. The lawsuit, on behalf a proposed class of all U.S. consumers, says that Kashi put the all-natural labels on their foods even though they knew the claim to be false. For example, Kashi GoLean shakes are composed almost entirely of unnatural processed ingredients.

Source: Top Class Actions

Eclipse gum

Eclipse gum claimed that its new ingredient, magnolia bark extract, had germ-killing properties. Businessweek reports :

Consumers sued Wrigley [in 2009] in federal court arguing the subsidiary of privately held Mars Inc. made misleading advertising claims about the germ-killing properties of Eclipse.

As part of the settlement, Wrigley will change how it markets and labels its gum. It agreed to pay $6 million to $7 million to a fund that will reimburse consumers up to $10 each for the product and cover other costs of the settlement, according to the law firms Blood Hurst & O'Reardon and Robbins Geller Rudman & Dowd.

Classmates.com

Millions of people lit up when Classmates.com sent them an email saying old friends were trying to contact them, promising to rekindle old friendships and flames if subscribers upgraded to a "Gold" membership. But even with an upgrade, the expected reunions never came. Turns out the social networking site used the ploy to get users to pony up extra dollars. In 2008, one miffed user filed suit alleging the "deceptive" emails were false advertising. He eventually bested the website, which agreed to pay out a $9.5 million settlement -- $3 for every subscriber who fell for the dirty trick -- to resolve the case. Source: Mashable

Companies spend tons of money to market their products

Check out the 12 companies that spend the most on advertising >

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Nutella Maker May Settle Deceptive Ad Lawsuit For $3 Million

Ted Burnham

The fact that Nutella's parent company, Ferrero, is known for its chocolates might be a tip-off that the sweet hazelnut spread isn't exactly "health" food. STEFANO RELLANDINI/Reuters /Landov hide caption

The fact that Nutella's parent company, Ferrero, is known for its chocolates might be a tip-off that the sweet hazelnut spread isn't exactly "health" food.

Remember that California mom who sued Nutella maker Ferrero over misleading advertising that made the addictive and gooey chocolate-hazelnut spread seem healthy?

Well, her lawsuit was awarded class action status, and the New York Daily News reports that Ferrero has agreed to settle for $3 million. That works out to be about $4 a jar or less, if you're thinking of making a claim.

Quick recap: as we reported on the Shots blog last year, the trouble began when Athena Hohenberg realized that the Nutella she'd been feeding her 4-year-old daughter was "the next best thing to a candy bar," according to court documents . Hohenberg says she was taken in by ads and product labels that claimed Nutella was "healthy" and "part of a balanced meal." When friends eventually pointed out Nutella's high sugar and fat content, she sued Ferrero for deceptive advertising.

Nutella maker Ferrero will stop running this ad on TV after agreeing to a settlement over disputed claims that the hazelnut spread is "healthy."

At the time, many commenters were astounded that anyone would consider TV ads a reliable source of nutritional information. Indeed, it only takes a glance at the label to discover that Nutella's main ingredients are sugar and palm oil.

Now, to be fair, many of us don't really look at labels too closely, but with glaring numbers like 21 grams of sugar and 200 calories in each 2-tablespoon serving – and half of those calories coming from fat – you'd think that might register with a shopper.

Naturally, Ferrero's ads don't mention the fat or sugar. Instead they talk up the "simple, quality ingredients like hazelnuts, skim milk and a hint of cocoa." Apparently, that gave Hohenberg's claim enough weight to convince Ferrero to settle. The company now says it will change its nutrition labels and its advertising, in addition to the $3 million payout.

Under the terms of the proposed settlement, anyone who purchased Nutella in the last few years may join the class action. Each claim will pay out up to $20 – that's $4 per jar, on up to five jars – or less, depending on the number of claimants.

If you, too, were fooled into thinking that sweet, chocolatey, hazelnut goop was actually good for you, visit nutellaclassactionsettlement.com for more information.

For the legal geeks keeping score, technically, there's two class-action settlements — one for California and one for the rest of the country. And they were reached in January, although both settlements aren't really final until the district courts give them the OK at "fairness hearings" in July.

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Social Responsibility and Misleading Advertising of Health Products on the Radio. The Opinion of the Professionals

María teresa garcía-nieto.

1 Department of Theories and Analysis of Communication, Faculty of Information Sciences, Universidad Complutense de Madrid, 28040 Madrid, Spain; se.mcu.fnicc@otein

Juan Enrique Gonzálvez-Vallés

Mónica viñarás-abad.

2 Department of Applied Communication Sciences, Faculty of Information Sciences, Universidad Complutense de Madrid, 28040 Madrid, Spain; se.mcu@saranivm

Associated Data

Data sharing not applicable.

This research studies the opinion of advertising professionals in agencies, on the responsibility in relation to misleading advertising of health-related products, on the medium of radio. Through a closed survey of these professionals with different types of response, dichotomous, multiple choice and Likert scale, relevant results were obtained regarding compliance and application of the law and social responsibility linked to an advertising that directly affect health. The results show that only 10% of them know the legislation, although almost 90% of those surveyed consider it necessary to have legislative knowledge, and for only half of these, is it important. A large majority assure that the health sector should be one of the most protected sectors in the advertising world and, it should be noted, that the vast majority of the professionals surveyed view the legal restrictions on advertising in the health sector as positive. There is no unanimity as to who is responsible for the message, agency or advertiser. For its part, radio is presented as one of the most serious media and less prone to misleading advertising. To conclude, it can be stated that the professionals of the agencies do not perceive the existence of misleading advertising in the health sector, neither do they consider radio as one of the media where this deception can most occur. However, they coincide in stating that the health sector is one of the most dangerous if the damage that advertising deception can cause to consumers is considered.

1. Introduction

Misleading advertising is a serious detriment to consumers and, therefore, to one of the groups of interest of the advertising agencies and the advertiser with whom it is related. In the case of advertising for health products, where audiences are more vulnerable, this fact is more reprehensible. Advertisers are aware that today brands, and therefore companies, have to combine their sales objectives with a strategic vision of the organization based on ethics, transparency and CSR [ 1 ]. Nowadays, advertising has a twofold function: its role as a commercial activity and, on the other hand, it has a social dimension by directly influencing contemporary ways of life. Advertising represents one of the most regulated activities in Spain, but from a social point of view its management is more complicated and the consumer is not always protected [ 2 ].

Misleading advertising can pose a risk to citizens and consumers. Therefore, it is subject to different laws and regulations that ensure a truthful and ethical message. However, the fact that the message depends on both the advertiser and different professionals within the advertising agency, can lead to a situation where control of the rules is lost.

For this reason, it has been considered of great interest to learn the opinion of advertising professionals regarding this situation, in order to explore whether they feel responsible and how this is managed. For its part, the radio has a large audience, with an intimate and personal tone, which justifies the interest in its study. The results will allow us to reflect on the responsibility of all the agents involved.

The main objective of this work is to understand the perception and opinion that advertising communication professionals have about misleading advertising and their liability in relation to it. Specifically, the work focuses on misleading advertising in relation to health-related products in the radio medium.

The work is structured starting from a state of the art, after having raised a brief introduction on the relevance of the topic and the objectives. Then, the methodology for presenting the relevant results is explained. The last part collects the conclusions and the discussion separately.

1.1. Misleading Advertising—Disloyal and Illicit

The European regulations on misleading advertising are in Directive 2006/114/EC [ 3 ], on misleading and comparative advertising. In Article 2 of the Directive, misleading advertising is considered to be “any advertising that, in any way, including its presentation, misleads or may mislead the people it addresses or affects and that, due to its misleading nature, may affect their economic behaviour or, for these reasons, harms or is capable of harming a competitor “. In Spain, misleading advertising is considered an act of unfair competition, as set out in article 5 of the text of Organic Law 3/1991 of January 10 on Unfair Competition Practices (LCD) [ 4 ].

Therefore, misleading advertising is essentially characterized by inducing error or deception in the possible acceptor of a contract, in such a way that the principle of good contractual faith is violated, which must prevail in every legal relationship [ 5 ]. Despite this, in advanced societies organized around the logic of mass consumption, advertisers sometimes use unfair techniques to increase or maintain their market share [ 6 ]. Therefore, in all developed countries this type of advertising is considered a crime [ 7 ]. This advertising disloyalty affects fair play and hurts competitors and the economy of the customer [ 8 ].

The advertising sector is one of the most regulated, but due to its social impact, self-regulation has acquired a fundamental role [ 9 , 10 ]. Self-regulation has become an indispensable way to defend consumer rights [ 11 ]. Associations such as Autocontrol [ 12 ] in Spain seek to ensure responsible advertising: loyal, truthful, honest and legal. Meanwhile, consumer associations warn of misleading and disloyal messages in relation to the nature and ownership of goods or services, their availability and after-sales services [ 13 ]. Despite this, different sectors are identified -some with a serious effect on health- where the practice of this type of advertising is a reality today [ 14 ].

Research on unfair advertising has been carried out from different approaches. Most research is accomplished from the perspective of legal regulations and codes of conduct, based on precepts of the FDA (Food and Drug Administration) [ 15 , 16 , 17 ]. Some studies reflect on the persuasive effects of consumer deception. Deception comes in many forms, from outright lies, to the amount and sufficiency of information, the degree of truthfulness, clarity, relevance and intent [ 18 , 19 ]. A study by Ukaegbu [ 7 ] reveals that some people do not find it easy to identify whether an advert is misleading. Consumers should be aware that their buying behaviour may be the result of deception by advertising methods. They must know how companies present and advertise their products or services to avoid deception [ 20 , 21 ]. Education constitutes a determining variable of the level of influence of this type of advertising [ 22 ].

The arrival of the internet and new technologies poses a challenge for misleading advertising. The most recent studies show the use of these recommendation techniques as illicit or misleading advertising, which requires a legal regulatory framework and awareness of the self-regulatory bodies and the networks themselves to fill these gaps and guarantee the quality of communication between brands and the public [ 23 , 24 ].

1.2. The Social Responsibility of the Media and Unfair Advertising

The relationship between media and society has always been problematic in two areas [ 25 ]. On the one hand, the media control and influence society through preparation, agenda setting, framing and publicity, according to their commercial and political interests. On the other, the huge changes and the dynamics of information technologies make the standards and regulations of the media become obsolete very rapidly [ 26 , 27 , 28 ]. At this point, the contradiction that exists when a medium spreads misleading advertising can already be sensed, where the responsibility falls on several of the agents: advertiser, agency and medium [ 28 ].

Corporate Social Responsibility is a strategic management system that integrates, applies, develops, verifies and evaluates the behaviour of actions in the respective businesses and institutions [ 28 , 29 ]. CSR bases its theoretical development on business management and social marketing [ 30 ]. For Campos [ 30 ], in the communication sector, CSR takes on special relevance as “the complexity of communication and modern media companies currently requires a broader, comprehensive, convergent and total approach to this responsibility not only to fulfil its social purpose, but also to regain or not lose the credibility that sustains the essence of mediation”. In the case of media companies, socially responsible management converges [ 31 ] with the management of responsible communication [ 32 , 33 ].

In general, both in the US and in Europe there is a sensitivity and its consequent regulation of the media in terms of social responsibility. Advertisers are primarily responsible for all commercial communications for the audience [ 34 ]. The good practices of social responsibility of a communication medium are evaluated, among other things, by the quality of informative content, by its programming and the good management of advertising [ 35 ].

If the frequency of complaints about unfair advertising is analysed, it can be verified that all media are subject to complaints [ 36 ]. However, it is surprising that despite the cases of misleading advertising found on the radio, especially for health-related products, the truth is that this medium is characterized by its low relative weight in the set of claims filed. The cause seems to be found, among other reasons, in that the radio still does not receive sufficient monitoring by the advertising self-regulation body Autocontrol and its scant proactivity to claim illicit advertising [ 37 ].

Misleading advertising constitutes a socially irresponsible action at the most basic and elementary levels of corporate social responsibility [ 28 ]. Misleading advertising directly harms consumers, as a group of people on whom the company depends to guarantee its existence and durability. If the levels of corporate social responsibility defined by Grunig [ 38 ] are attended to, [ 39 ] in the field of public relations, then, it is shown that misleading advertising fails to comply with the most elementary level of public responsibility, as deception of the consumer affects one of the organization’s primary commitments, directly related to its basic functions [ 28 ]. In addition, and from the business approach, “misleading advertising implies the breach of several dimensions of corporate responsibility, legal of course, but also and especially ethical responsibility, broader and higher ranked” Carroll [ 40 ].

If illegal, unfair and misleading advertising is discovered, it is due primarily to the social responsibility of advertisers and advertising agencies, or to intuition and disrespectful behaviour in managing relationships with the public [ 28 ]. Misleading advertising directly harms one of the interest groups of a company, its current or potential consumers, reason for which it violates the basic principles of socially responsible management [ 41 , 42 ]. As García Nieto [ 28 ] indicates, unfair advertising violates the principles of responsibility of different theorists [ 43 , 44 ]. Acts of unfair advertising, specifically misleading advertising, represent fraud and are classified as an administrative offense, so the advertising company can be sanctioned for it. However, not only is this legal dimension found, but also that of social responsibility, and a higher ranking one, such as ethical responsibility [ 40 ].

The link between advertising and CSR is manifested in the self-regulation itself, where these bodies provide CSR certificates to advertisers who undergo this self-regulation, to include them in their sustainability reports [ 45 ].

1.3. Misleading Advertising of Health Products

Investment in advertising has fallen since the start of the COVID 19 pandemic. Only the health sector has increased investment in advertising, up to 3% [ 46 ]. The health sector is defined as the set of values, norms, institutions and actors that develop activities of production, distribution and consumption of goods and services and whose main or exclusive objectives are to promote the health of individuals or population groups [ 47 , 48 ]. In advanced societies, health includes diverse factors such as the social, work and personal environment, as well as the services that promote and maintain health [ 49 ].

In countries such as Spain, the concept of a healthy life is increasingly integrated into society. Advertising reminds us of the need to eat well, avoid a sedentary lifestyle and stay young and healthy [ 37 ] in all kinds of products, even those that have nothing to do with health. Companies advertise their novel foods in a peculiar way, using health as the axis of their advertising messages [ 50 ]. Health has been established as a clear advertising claim, not always with truthful arguments; a false image of health is spread, sometimes with fake news and pseudo-fact [ 51 , 52 ]. In fact, most of the advertising claims concern pieces related to products that promise healthy benefits [ 37 ]. Therefore, it is inevitable to talk about the responsibility of advertisers. “Advertisers are morally responsible for strategies that incite a certain type of behaviour” [ 53 ].

A paradigmatic case of deception in the advertising of supposedly healthy products is that of the so-called “miracle products”. It is common for these advertising campaigns to use messages with arguments or references of sanitary appearance. There is high awareness of misinformation in health related advertising [ 54 ]. The target audience for these kinds of advertised products is especially weak and easy to succumb to the promises [ 55 ]. As can be seen, the misleading advertising of supposedly healthy products affects especially the most vulnerable people, putting their health at risk [ 56 ]. For instance, the favourite medium of brands to address the youth audience is television, a medium in which advertising for children of unhealthy foods and beverages predominates over healthy products [ 57 , 58 , 59 ].

One aspect of concern in the area of misleading health advertising is the use of famous people or experts to provide testimonials about the advertised product. In spite of the legislation establishing several measures and limitations for the use of this practice, some studies reveal that there are many brands that use testimonials [ 60 ].

However, it must also be borne in mind that health-related advertising, advertising directly or indirectly linked to the health field can also produce anomalies, promote prejudices, generate loss of meaning, produce anomie [ 56 ]. Health-related products find an audience more sensitive to persuasion in the vulnerable public, which they benefit from in order to achieve a better performance of business objectives [ 56 ].

Health is one of the most worrying issues in relation to the problem of disinformation [ 53 ]. The data provided by various investigations reveal that the majority of complaints from consumers or interest groups refer to products related to health benefits [ 37 ]. Of the complaints filed in consumer associations between 2010 and 2015, Food and Health were the most numerous amongst more than 40 sectors, and in those five years, those of Health increased fourfold [ 36 ]. All this despite the sanitary prohibitions developed [ 61 , 62 ].

The use of public figures is very common in this type of advertising which, although it does not constitute, in itself, misleading advertising, “these types of claims can be manipulative enough to raise a legal (or at least an ethical) debate within advertising strategies” [ 63 ], especially with vulnerable audiences, such as children.

Actions such as these lead consumers to become victims of scams. The presence of influencers or familiar faces in advertising, or the mere fact that they simply use the product, serves as a push and motive for a purchase. It is contradictory that this happens when the journalists’ own code of ethics prohibits these professionals from collaborating in advertising campaigns for reasons of transparency of the medium and the information professional, and thus avoid conflicts of interest [ 64 , 65 , 66 ].

One of the five sectors with the most claims in Autocontrol is health [ 67 ]. This fact can be increased by adapting Spanish legislation to the five Community Directives that concern advertising communication [ 68 ]. These cases confirm the conclusions of a previous study [ 49 ] according to which misleading radio advertising is found mainly in the categories of food, beverages, beauty and hygiene and health. In addition, the use of testimonies from people of reference, such as health personnel or opinion leaders, in relation to whom the legislation imposes clear restrictions and prohibitions is surprising [ 60 ].

In conclusion, misleading advertising is a reality despite the legislation and self-regulation of the sector, not so much because of the tacit intention to deceive, but because of an extreme use of advertising language that plays with the perception and interpretation of the public, either by the questionable use or absence of their elements [ 69 ].

1.4. Advertising on the Radio

Nowadays, the radio can be considered as much an advertising medium as it is an informative or entertainment one. A medium that, due to its characteristics, stimulates the imagination and consequently encourages creativity [ 70 ] and one that has always seen in technology an opportunity to continue its work [ 71 ]. However, radio advertising does not always receive the attention and professional dedication it deserves, to the point of making it “repetitive, monotonous, old-fashioned, realistic, unimaginative and exaggerated” [ 49 ]. All this, despite the fact that the transmission of advertising messages on the radio is constructed in a more personal and intimate way, making the listener receive the message in a particular way, as if the broadcaster were only addressing him or her [ 69 ].

The study of the Advertising Observatory [ 72 ] reveals that almost half of the Spanish population, 22,930,000 million people, listen to the radio. The radio occupies the third position in Spain by volume of advertising investment, after digital media and television, with a contract of 374,9 million euros in 2020 [ 46 ]. Its consumption, despite the passing of time and the advancement of technology, remains conventional and traditional, with a loyal audience, of which more than half of the listeners do not change stations during advertising [ 73 ].

However, not all advertising formats are valued in the same way by the public. Thus, according to the aforementioned study by the Advertising Observatory [ 73 ], commercial and sponsorships are the best valued, with a score of 6.4 and 6.3 respectively (on a scale of 1 to 10), while straight announcement and microprograms obtain a score of 4.7 and 4 respectively.

When advertising investment by sector is analysed, we see how financial institutions continue to be the ones that opt for the radio medium, confirming the trend marked from previous years. Finances represent 17% of radio advertising investment; public and private services, 14.4%; culture, education and the media, 13.4%; health, 11%; and transport, travel and tourism, 9.4% [ 34 ]. The radio continues to be a medium of great interest for advertising in these sectors.

The radio is an instrument for education and its potentialities are implicit when it fulfils the functions of educating, informing and guiding society in a dynamic way, with messages for the promotion of health and prevention of diseases [ 71 ]. In some more disadvantaged areas, radio is an opportunity for health messages due to its easy access versus that of the television [ 74 ].

2. Objectives and Methodology

The main objective of this article is to know the perception and opinion that advertising communication professionals have about misleading advertising and their responsibility in relation to it. Specifically, the paper focuses on misleading advertising in relation to health-related products on the radio medium.

Different research questions were posed:

P1 What responsibility do these professionals want to assume and do they assume in the advertising process?

P2 What knowledge do professionals have about laws and liability?

P3 How does it influence the creative process and the use of rhetorical resources?

P4 What media are considered by professionals as the most prone to mislead advertising? Is radio one of them?

In order to achieve this objective, a quantitative study [ 75 ] has been carried out through the application of a survey with closed responses [ 76 ]. The sample was made up of 68 advertising professionals belonging to the most important agencies in Spain. Both creative and account executive profiles were included in the sample, since both collaborate in the design of the strategy and the message to be transmitted once the briefing of the advertiser is received. The investigation has a descriptive-exploratory nature; this the sample is not representative. The reason lies in the impossibility to determine the number of advertising professionals in Spain, since, despite the numerous associations, there is no individual one that can be said to group the majority. However, those profiles that make direct decisions regarding the content of the message have been surveyed: creatives and account executives (including planners), leaving aside other profiles such as media planners, who do not intervene in the essence of the message.

The questionnaire had 31 questions, dichotomous or multiple-choice answers, and a Likert-type scale, except one with a closed response. The results of this survey will make it possible to analyse who is responsible, the creative process and respect for the law, assessment of responsibility in advertising, knowledge of the laws, assessment of the different media and compliance with responsibility. Even though this sample cannot be considered quantitatively representative, it does have exploratory validity as it reflects the range of diverse opinions of the aforementioned professionals. Therefore, this article is a descriptive exploratory research.

Prior to the dissemination of the survey, a series of in-depth interviews with advertising professionals had been carried out, the results of which were taken into account for the design of the questionnaire.

Advertising professionals for advertising companies and agencies work cooperatively to build successful campaigns that position brands in the minds of consumers. However, these professionals may have different views on the same issues due to the different perspectives from which they work. It is interesting to find out what these opinions are and to know the perception of responsibilities in the process of preparing a campaign depending on the side from which it is viewed.

The questions were divided around two main issues: their experience and professional practice in customer relations and their opinion on the practice of advertising related to health and the media.

In the first section, regarding the level of demand of advertisers, 72.1% have described their clients as very demanding. On the other hand, 23.5% consider that only some of the clients are, but not the majority. Finally, 4.4% do not consider the clients they work for demanding. When coding the variables on a scale from zero to two in terms of level of demand, the mean is set at 1.68 with a median and mode of 2.

The most common demands of clients are enquired through an open answer. We observe that almost half of the respondents refer to budget-related requirements (41.17%). Secondly, the fulfilment of the briefing requirements (20.58%) and the time to carry out the campaigns (17.64%) stand out. Lastly, highlighting the logo of the advertised brand.

Only 8.8% of those surveyed have assured that these types of demands are not a determining factor in the creative process. Almost 60% have indicated that it is more difficult to work on a creative campaign that has many conditions, while 32.4% indicate that it is complicated, but they do not consider that it conditions their creativity excessively. Coding from zero to three in terms of the level of demand and its conditioning of creativity allows us to establish a mean of 2.29 with a mode of 2 and a median of 3.

38.2% of those surveyed state that, when it comes to an advertiser that is complicated in the legal sense, due to the brand or the product category, less than half of the briefings collect the necessary indications to develop a campaign. On the other hand, 31% declare that these guides are indicated in all or most of these briefings. When cleansing the variables and coding them on a scale from zero to three, the mean is 1.92 with a mode and median of 2.

Looking at the campaigns from a creative point of view, there is a clear division between advertising professionals. 47.1% of those surveyed state that the creative person in charge of a campaign is the agency, while 50% think that both the agency and the advertiser are responsible.

Regarding the legal responsibility in relation to a campaign, 50% of advertising professionals consider that both the client and the agency are responsible, 13.2% consider that it only belongs to the advertising agency and 36.8% attribute the legal responsibility to the advertiser ( Figure 1 and Figure 2 ).

Who is responsible for the creative campaign.

Who is responsible for the legal campaign.

As a result of the above, 83.3% of those surveyed assure that advertising should always be responsible. On the other hand, 11.8% consider that it should be, but it is not always necessary.

From the answers to the question, with multiple answers, about the meaning of “being responsible” in advertising campaigns, it follows that for 76.5% of those surveyed, being responsible means respecting the values that prevail in society. Secondly, it has to do with compliance with legal requirements (51.5%). Less than half (45.6%) believe that responsibility implies “think about the consumer”, and that takes into account the environment (38.2%). In addition, among the open responses collected, a call is made to “staying away from misleading advertising”; “being honest. Not lying”; “not sending offensive messages”.

After assessing what responsibility means, they were asked if they believe that advertising is responsible. Only 10.3% of the people surveyed consider that advertising is responsible in all its aspects and forms. More than half of those surveyed (57.4%) believe it depends on the product or brand being advertised, and 26.5% associate it with the advertising company.

Regarding advertising legislation, advertising professionals agree that it is necessary to have knowledge of legislation on the part of the advertiser (85.3%), the media (91.2%) and the advertising agency (88.7 %).

For half of the respondents (51.5%) it is important to know the advertising legislation when carrying out their work. In fact, about 20% consider it essential. However, it is surprising that almost 12% answered that knowing the legislation is not at all or not very important. For 37% of those surveyed, knowledge of the law and its application has some importance, but it is not perceived as something significant in the exercise of their profession ( Figure 3 ).

Liability criteria.

Only 10.3% know in depth the advertising legislation and almost half of those surveyed claim to know it, but not in depth, while 39.7% claim to know only specific aspects of the legal regulations. However, 19% have revealed that they never consult the legislation and half of those surveyed have answered that only on specific occasions.

Different opinions are observed regarding the barriers determined by the law. 38.2% assure that the legislation establishes barriers in the creation process and is affected by them. 36.8%, however, do not feel affected by them. 25% answer that “maybe”. However, when professionals are asked about the extent to which they consider that the law hinders work on a scale of 1 to 5, with 1 being not at all and 5 being a lot, most of the responses concentrate on the number 2 (36.8 %) and 3 (33.4%), so legal limitations are not considered to excessively hinder the creative process.

On the subject of advertising deception in relation to the consumer, on a scale of 1 to 5, with 1 being nothing and 5 being a lot, 83.5% consider it very dangerous. In addition, most of the respondents say that it occurs only occasionally, while 25% say that it occurs frequently.

When asked about the sectors most susceptible in which deception ( Figure 4 ) is more frequent, the majority of those surveyed associate it with gambling and, after this, with the beauty treatment sector (65%) and the food sector (50%).

Opinion on sectors susceptible to deception.

The health sector, which is the object of this investigation, is not mentioned as a sector particularly prone to advertising deception, along with the sectors of fashion, personal hygiene products and household cleaning and hygiene. However, professionals do recognize that it is in the health and food sectors that misleading advertising is most dangerous.

72.05% of those surveyed state that they fully agree with the statement “misleading advertising should be eradicated” and almost 15% have indicated they agree. On the other hand, 69.1% of the professionals have shown to fully agree with the statement “advertising deception should have more control”, while 19% have shown to agree. In addition, 67.4% fully agree that making use of advertising deception directly affects the credibility of a brand.

A greater division of opinions is observed in the proposal that campaigns, based on recommendations through testimonials from consumers or famous people, should be more regulated. 33.8% totally agree with the statement, 26.4% agree, 25% consider themselves indifferent, 7.35% disagree and the same proportion totally disagree.

On the other hand, advertising professionals consider that the medium in which it is easier and more frequent to induce deception is the internet –indicated by 92.6%–, especially by social networks. This is followed by television (66.2%); and with a visibly lower percentage, in third place, magazines and radio are pointed out, both with 13.2%.

If we relate variables, we find issues to consider. Even though the health sector is not perceived as one of the three most susceptible to deception, it is considered the most dangerous if it occurs. The opposite case is that of the Beauty treatment sector, which leads to consider whether the sector considers that the legislation protects the Health sector more than that of the Beauty treatment one ( Figure 5 ).

Opinion on the most endangered sectors in case of deception.

This question establishes a clear relationship between the methodology and Q4 of the article, since it focuses on misleading advertising in relation to health-related products in the radio medium ( Figure 6 ). Specifically, in the health sector, 88.2% of those surveyed consider the internet as the medium where more deception can occur, followed by television (55.9%). In addition, magazines (19.1%), the press (16.2%), radio (14.7%) and outdoor advertising (13.2%).

Opinion on media most likely to mislead.

Finally, 88.2% of those surveyed consider it favorable that the health sector has more legislative restrictions than the rest of the sectors, including the food sector.

4. Discussion

It is of great interest to know the opinion of the professionals who prepare advertising messages related to health, to sell these products to all types of consumers. Professionals argue that their job is to create persuasive content that helps their clients, advertisers, meet a goal. Likewise, they understand that the creative process carried out in the agencies is undoubtedly and, in any case, a task of responsibility with the public due to the impact it has on society. The balance between persuasion and consumer protection, together with the collaboration between agency and advertiser is the key.

The advertising process has gaps in the control of misleading advertising. Advertising agency professionals work for numerous advertisers normally belonging to different sectors, amongst which are those that are subject to the strictest legal regulations in relation to their advertising campaigns [ 77 ].

However, after having collected the opinions and experience of professionals, only 10.3% claim to know the law in depth. Most advertisers confirm that they have legislative knowledge but admit that it is not in depth and only about some specific issues. In addition, 4.4% of those surveyed even confirm that they completely lack this type of knowledge.

Agency professionals feel safe in this regard because many of the briefings include clauses on legal limits. In addition, many of the large advertising agencies have a legal service that controls the progress of creative pieces so as not to commit fraudulent acts. However, almost 90% of those surveyed consider it necessary to have legislative knowledge, but for only half is it important. It is striking that, for 12% of those surveyed, knowing the legislation is not at all or not very important. For this group of advertisers, knowledge of the law is irrelevant in the performance of their work. Even for 37% the legal question is not considered significant in their profession.

Shared assumption of responsibility for the creation process.

If we refer to the responsibility of the campaign creation process, we find differing opinions among the professionals of the advertising agencies. For half of those surveyed, the responsibility for the creative process of a campaign corresponds to both the client and the agency. For the other half, however, it is only the advertising agency that is responsible for its creation.

From a legal point of view, half of those surveyed believe that responsibility for the campaign also rests with both the agency and the advertiser, while another 36% attribute legal responsibility solely to the advertiser. A further 13.2% attribute this responsibility only to the advertising agency.

Health-related products are considered the most dangerous in the case of misleading advertising.

Even though the work of advertising professionals within agencies covers many sectors due to the number of brands they work with, they have agreed that there are sectors more dangerous than others when misleading. It has been possible to observe the conformity of advertising professionals with respect to the health sector, mentioned by the vast majority as one of the most vulnerable and dangerous sectors in relation to misleading advertising. In addition, it is ensured that this should be one of the most protected sectors within the advertising world and, it should be noted, that the vast majority of the professionals surveyed see the legal restrictions on advertising in the health sector as positive.

The radio is valued as a serious medium where misleading advertising is unlikely.

The professionals of the agencies do not consider the radio as one of the main mediums where publicity deception can be induced in the health sector, this is the object of study. In fact, radio is behind other media such as the internet, television or magazines, when it comes to advertising deception in general. This is also the case if you ask about the health sector in particular. Radio ranks fourth behind the aforementioned media. Interestingly, advertising professionals do not consider deception to occur on the radio. In fact, radio is described as a serious medium in which the broadcasting of deceptive campaigns is considered almost impossible and highly unlikely.

5. Conclusions

To conclude, the fact that agency professionals do not perceive the existence of misleading advertising in the health sector may be subject to study if we compare it with previous studies [ 14 , 19 ]. They do not consider radio as one of the media where this deception can occur the most, however, most of the advertising claims refer to pieces related to products that promise health benefits [ 37 ]. Even though, they agree that the health sector is one of the most dangerous if one takes into account the damage that advertising deception can cause to consumers, who in many cases are vulnerable [ 56 ].

Author Contributions

Conceptualization, M.T.G.-N. and M.V.-A.; methodology, J.E.G.-V.; software, J.E.G.-V.; validation, M.T.G.-N. and M.V.-A.; formal analysis, J.E.G.-V.; investigation, M.T.G.-N.; resources, M.T.G.-N. and M.V.-A.; data curation, J.E.G.-V.; writing—original draft preparation, M.V.-A.; writing—review and editing, M.V.-A. and J.E.G.-V.; visualization, M.T.G.-N.; supervision, M.T.G.-N.; project administration, M.T.G.-N.; funding acquisition, M.T.G.-N. All authors have read and agreed to the published version of the manuscript.

This research was funded by Projects Innova-Docencia no. 330 (2020) and no. 262 (2021) “University and society: communication, integration and collaboration with companies and public institutions, and non-profit organizations” Complutense University, Madrid (Spain).

Institutional Review Board Statement

Not applicable.

Informed Consent Statement

Informed consent was obtained from all subjects involved in the study.

Data Availability Statement

Conflicts of interest.

The authors declare no conflict of interest. The funders had no role in the design of the study; in the collection, analyses or interpretation of data; in the writing of the manuscript or in the decision to publish the results.

Publisher’s Note: MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

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Worst False Ad Settlements of 2021

Class-action settlements leave consumers behind.

Dec 23, 2021

It’s not always the case that a class-action settlement resolving allegations of false advertising or deceptive marketing results in what’s best for consumers (or class members as they’re known in litigation). Here are some of those that left class members out in the cold this year.

The settlement reached in a false advertising lawsuit involving the brain supplement Neuriva allows the marketer Reckitt Benckiser to continue making misleading claims. Plaintiffs alleged that Neuriva was falsely advertised as “clinically proven” to improve several areas of cognitive functioning, including memory and focus. But while the settlement (which the parties amended in an attempt to address some of TINA.org’s concerns as articulated in its court filings objecting to the settlement) prohibits the company from marketing the supplement as “clinically proven” or “shown” to improve brain performance, it allows the company to use words and phrases that send the very same message. Such permissible language — if the settlement is officially approved by the court — includes “clinically tested,” as well as “backed by science” and any other synonymous language. In addition, the majority of class members won’t receive any money under the settlement while plaintiffs’ attorneys will pocket nearly $3 million.

A settlement resolving allegations that Apple throttled the performance of several models of iPhones and iPads to induce owners to buy new devices also makes the list. While class counsel requested a whopping $87.7 million in attorneys’ fees, class members would get $25 for each device they own that experienced diminished performance. The Department of Justice and 12 state attorneys general filed briefs opposing the attorneys’ fees as excessive and unreasonable. Dozens of class members also objected to this settlement, and most of these objections took issue with attorneys’ fees. Even Apple opposed the amount plaintiffs’ counsel would get paid, while agreeing to the remaining terms of the proposed settlement. Though the court lowered the attorneys’ fees, the fees remained over $80 million and the settlement was given final approval, which class members appealed. Check back for the outcome of that appeal.

Spartan Race

Class members who alleged that Spartan Race, an obstacle racing event company, engaged in a deceptive insurance scheme may not feel like winners. Under the settlement , which was approved by a federal court in May despite objections from class members , class counsel got nearly $2.3 million in fees, while class members could select either a free four-month membership in the “Spartan+ Membership Program” or up to four $5 vouchers to use to purchase merchandise on Spartan’s website. (Both options require class members to remain customers of Spartan, where $20 may not go very far seeing as a T-shirt on the company’s online store sells for $55 ). In addition, the company may still impose the disputed “Racer Insurance Fee” as long as it changes the name of the charge and discloses that Spartan may pocket a portion of the fee.

General Mills Fruit Snacks

In June, a federal court denied preliminary approval of a proposed settlement in a lawsuit accusing General Mills of falsely marketing fruit snacks as containing no artificial flavors. Under the terms of the rejected settlement, class members would have received no cash but would have given up their rights to sue in the future. Meanwhile, the company would have been allowed to keep the “no artificial flavors” label on product packaging as long as it was accompanied by an asterisk directing consumers to a statement on the company’s website identifying the natural flavors on the ingredients list and disclosing that the products may also contain synthetic ingredients. In addition, the company only agreed to make this marketing change for four years. After the court rejected the settlement, the parties revised their agreement to allow class members to retain their rights to sue General Mills for damages or personal injury regarding the products at issue and to require that the company remove the phrase “no artificial flavors” from product packaging and promotional materials (but only for a period of two years). The parties moved for preliminary approval in September. Stay tuned as to whether the court gives it the green light.

Roundup Weed & Grass Killer

Third-party organizations were the real winners in a settlement resolving a lawsuit involving the marketing of Roundup Weed & Grass Killer. According to the lawsuit, labels misleadingly imply that products do not cause adverse health effects by falsely representing that the active ingredient glyphosate “targets an enzyme found in plants but not people or pets,” when in reality the enzyme is found in people and pets and therefore using the product may result in adverse health effects. Pursuant to the settlement agreement, the cash awards given to class members are capped at half of the average retail price of each product purchased. Only two to three percent of the class (around 240,000 class members) filed claims. While not unusual to have such a low percentage of class members file claims, that means only around $12 million of the nearly $40 million settlement fund goes to class members, while (French for “as near as possible”): a legal doctrine that requires a judge to consider the manner in which unclaimed settlement funds in class action lawsuits are distributed. Under this doctrine, the remaining funds must be distributed for the indirect benefit of the class instead of benefiting the defendant. recipients — including the National Advertising Division, the National Consumer Law Center and the Center for Consumer Law & Economic Justice at the University of California — walk away with about $16 million of the settlement fund. Class counsel gets around $10 million and the remaining $2 million goes to pay administrative fees and the named plaintiffs. An objecting class member appealed the final approval order in June. Then, in August, 10 state attorneys general opposed the settlement arguing that the large cy pres distribution is unfair to class members. The appeal remains pending.

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How false advertising misleads consumers in South Africa

Associate Professor in Visual Communication, Tshwane University of Technology

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Rudi de Lange does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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The promise of health, losing weight, or increasing strength greets visitors to many health and supplement shops. Advertisers use images of muscular men and slender women, combined with carefully crafted text, to convince consumers to buy their products.

Words and shapes in bold and bright colours decorate the packaging of products that promise an increase in bulk and strength. Among the myriad of miracle promising products, you may find “testosterone boosting” supplements. A consumer can now buy a “legitimate” testosterone booster in South African retail stores.

In South Africa, regulations about labelling don’t allow advertisers to use pictures that are likely to create a false impression of the product. The Consumer Protection Act clearly states suppliers may not mislead consumers. The Act also bars suppliers from making false claims about a product.

But this has not stopped advertisers from making dubious claims. In a recent article I unpacked claims made in an advertisement for a testosterone boosting product.

The alleged active ingredient in some of these testosterone boosting products is D-aspartic acid . The main advertising claim is that a consumer’s testosterone level will increase after consuming a product containing this amino acid. The implied promise is that an increase in testosterone will provide a gain in muscle and strength. Stronger muscles, in turn, hold the promise of improving in sport. One such testosterone boosting product even claims to be based on science and that research was involved.

Regulating advertising

Claims that something is clinically proven, and that science and research are involved, require proof. The Advertising Regulatory Board of South Africa, for example, requires that advertisers must hold the evidence for their advertising claims. Advertisements must be truthful and may not mislead consumers. Advertisers are not allowed to misuse and misrepresent research results. They are not allowed to make science claims for a product if it does not have such a basis.

My recent article shows how advertising claims about a testosterone boosting product mislead consumers.

The advertiser claimed that the supplement would boost a consumer’s testosterone levels. The advertiser referred to a scientific paper as the evidence for the product’s testosterone boosting ability.

A closer look at this research showed that a small group of 23 men received a daily dose for 12 days of a product containing D-aspartic acid. The control group of 20 men received a placebo. The group that received the D-aspartic acid showed an increase in total testosterone after 12 days. Their testosterone decreased three days after their last dose on day 12.

The group’s average level of total testosterone increased from 4.5 nanograms per millilitre at the start, to 6.4 nanograms per millilitre on day 12. The advertisers used the ratio of this increase on day 12 to claim that a 42% increase in testosterone is possible.

What they didn’t say is that the study took place at an infertility clinic. The participants had low testosterone levels at the start. The average increase of 1.9 nanograms per millilitre of testosterone appears remarkable if one looks at the percentage difference. This increase was, however, still within the normal testosterone range of men of that age.

Advertisers who use this scientific paper as the basis for their advertising claims misuse and misrepresent science.

There isn’t enough knowledge about D-aspartic acid and its effect on the increase in testosterone levels. The evidence from a few small and short duration studies is not enough to conclude that D-aspartic acid can produce a clinically significant increase in testosterone levels.

Some advertisers also make misleading claims about supplements or weight-loss products.

In one case , the Advertising Regulatory Board ruled that an advertisement was misleading when it promised improved academic performance. The advertiser was not able to provide adequate proof that the supplement would improve a child’s marks at school. In another case , the Advertising Regulator Board ruled that a well-known supplier of supplements misled consumers. The advertising claims were that the product was “thermogenic” (fat-burning) and that it would aid weight loss. The Advertising Regulatory Board ruled that the claims were without substance.

Protecting consumers

Science-based claims that a product is the result of research does not necessarily mean that it works or that it is safe. It also does not mean that the manufacturer tested their own product in a clinical trial.

Clinical trials are very expensive, go through several stages, and can take several years. The last stage of a clinical trial requires a manufacturer to include a large group of participants to see if the product works as planned.

An advertiser that makes direct or indirect claims that a supplement can boost testosterone, help with weight-loss, or improve school performance must have proof for these claims. Consumers are within their rights to ask advertisers to supply the evidence for their claims.

Scientific articles about ingredients in their products are not sufficient. The scientific evidence must be about the specific product that an advertiser promotes. The evidence must be objective and open for independent scrutiny.

Consumers can lodge a complaint with the Advertising Regulatory Board about advertisements that they regard as misleading. Alternatively, one can also approach the Consumer Goods and Services Ombud to complain about misleading labelling.

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The Ethics of False Advertising

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Melissa Pacifico , University at Albany, State University of New York Follow Kaylie Johnson , University at Albany, State University of New York Follow Phillip O'Meara , University at Albany, State University of New York Follow

The Press: Freedom, Bias, Ethics II

Lecture Center 22

3-5-2019 3:15 PM

3-5-2019 4:15 PM

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False advertisement, the use of misleading and untrue information to push a consumer product, is an unethical marketing ploy that has tricked consumers since the beginning of the consumer business industry. With the modern emergence of social media, consumers are now vulnerable than ever to falling victim to these unethical deceptive representations. The ‘Fyre Festival’ documentaries that recently premiered on both Netflix and Hulu are a perfect example of modern day false advertising mixed with the use of unethical social media influencer advertising. In this research project we aim to uncover the significance of unethical advertising and research the results of both ethical and unethical advertising through the examination of four major companies who have been accused of using this tactic. The four companies we will be analyzing are Fyre, Groupon, Hydroxycut, and Redbull, since they are some of the well-known false advertising cases in the United States over the past few years. The goal of our research is to discover whether or not society falls for false advertising and how influencers and companies utilize unethical marketing to lure in consumers or followers. We will focus on four instances of false advertising and will understand how consumers were tricked into spending their money on a certain product, or going on a trip. We will analyze the marketing methods and tactics from each company and examine the trends that we find. We will be looking in depth at each lawsuit and analyze the results of both ethical and unethical advertising.

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Advertisement to Misleading Advertisement | Horlicks Ltd. v. Zydus Wellness Products

by Ankoosh Mehta*, Maitrayi Jain** and Anushka Shah***

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Introduction

In a largely capitalistic economy, advertisements are one of the most important sources of creating awareness about various products. We may have shifted our reliance from advertisements in print media and televisions to advertisements on social media, however, advertisements continue to remain the largest creator of demand among consumers. Companies continue to employ the most innovative techniques to woo their customers and boost sales. While attempting to do so, corporates often tend to promote their brand as being superior to their competitor’s.

Over the course of this article, we examine the recent decision of the Delhi High Court (“the High Court”) in Horlicks Limited  v . Zydus Wellness Products Limited [1]   (“ Horlicks case ”), where the High Court has dealt with the law relating to misleading advertisements and disparagement.

Article 19 and Commercial Speech

Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression to all citizens of India, and the essential corollary to the same is the right to be informed and access to information. In   Romesh Thappar v . State of Madras [2] , the Supreme Court held that Article 19(1)(a) includes the freedom of press, however, it was in Indian Express Newspaper v. Union of India [3] that the  Supreme Court  held that commercial speech is protected under the ambit of free speech and expression under Article 19 and  the Supreme Court  observed that “ We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by businessmen and its true character is detected by the object for the promotion of which it is employed .”

The above position was elaborated upon in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd. [4]  (“ Tata Press ”), wherein the Supreme Court observed the right of the consumer as a recipient of commercial speech by stating, “ An advertisement giving information regarding a life-saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of individuals to listen, read and receive the said speech .” Further, the  Supreme Court  also held that misleading and deceptive advertising would not fall within the protection of Article 19.

The law relating to misleading advertisement

  As evident from the name, a misleading advertisement is one that deceives, manipulates or is likely to deceive or manipulate the consumer. These advertisements have the ability to cause serious damage to the consumers, as well as competitors and hence are required to be restrained. The courts, while deciding various cases, have tried to strike a balance between protecting the right to commercial speech and the interest of consumers and competitors.

In the recent Horlicks case [5] , the High Court passed an interim order restraining Zydus from telecasting its advertisement comparing Complan to Horlicks on the grounds that the same was misleading and disparaging.

  Horlicks Limited  v. Zydus Wellness Products Limited

Horlicks Limited (“Horlicks”) approached the Delhi High Court, seeking a permanent injunction restraining Zydus Wellness Products (“Zydus”) from telecasting its advertisement, which showed that one glass of Complan (a Zydus Product) is equivalent to two glasses of Horlicks. The advertisement in contention was being telecast on multiple channels in English, Bengali and Tamil. Aggrieved by the advertisement, Horlicks approached the High Court on the ground that the advertisement was misleading and amounted to disparagement.

Zydus, on the other hand contended that the advertisement was not misleading as the information provided was accurate and was subject to the recommended serving size of both the drinks. A suit on similar grounds was filed by Horlicks for an advertisement published by Zydus in print media. The High Court had granted an interim injunction, restraining Zydus from publishing the advertisement, however, the injunction was vacated, when Zydus, voluntarily modified the advertisement, by including the disclaimer about the serving size and undertook to only publish the modified advertisement.

While arriving at a decision on the interim relief, the High Court analysed and relied upon the plethora of judgments on misleading advertisements, disparagement and law governing publication of advertisements on television, including:

(i) Reckitt & Colman of India Ltd. v. M.P. Ramchandran [6] , wherein the Calcutta High Court held that a seller is allowed to declare that his goods are the best or better than that of his competitor’s, despite the said declaration being false. While making such declaration, he may also compare the advantages and disadvantages of his products and that of the competitors; however, the seller is not permitted to defame the goods of his competitors and if there is no defamation, the competitor will have no cause of action to file a case of misleading advertisement and disparagement.

(ii) Dabur India v. Colortek Meghalaya Pvt. Ltd. [7] (“ Dabur India ”), wherein the Delhi High Court laid down the following guiding principles while dealing with the issue of misleading advertisements:

• Advertisements are protected under Article 19(1)(a) as commercial speech;
• An advertisement must not be false, misleading or deceptive;
• However, there are certain cases where the advertisement must not be taken as false, but as a glorious representation of one’s own product; and
• Only when the impugned advertisement goes beyond glorifying its product, and is deceptive and misleading, the protection under Article 19(1)(a) would not be available.

The High Court while dealing with the principles on law of disparagement laid down in Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. [8] , held that:

“ (1) The intent of the advertisement – this can be understood from its story line and the message sought to be conveyed. (2) The overall effect of the advertisement – does it promote the advertiser’s product or does it disparage or denigrate a rival product? In this context, it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison, but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect. (3) The manner of advertising – is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.”

(iii) In Havells India Ltd. v. Amritanshu Khaitan [9] the Delhi High Court clarified the difference between comparative advertising and misleading advertising and disparagement. It observed that comparative advertising is healthy and encouraged in the spirit of competition, however, disparagement is not; and a cause of action shall arise in case of a misleading advertisement.

(iv) In Gillette India Limited v. Reckitt Benckiser (India) Private Limited [10] , the Madras High Court noted the difference between electronic media and print media, while deciding cases of disparagement. In doing so, it observed that electronic media has greater power to leave a lasting impression in the minds of the viewers as compared to print media and held that, “ catchy phrase, a well enacted skit or story line, or even distinctive sounds or distinctive collocation of colours make a lasting impact and more so, when viewed repeatedly. ”

The High Court while relying on the abovementioned cases held that the impugned advertisement was misleading and disparaging, even though the disclaimer was provided in the advertisement, the same was not clear and the advertisement created an impression that one cup of Complan was equal to two cups of Horlicks, without considering the serve size. The High Court, based on the above observation, held that the balance of convenience was in favour of Horlicks, who would suffer an irreparable injury if telecast of the impugned advertisement was not restrained and hence, granted the relief of interim injunction.

The law on misleading advertisement is ever evolving and the HC judgement in  Horlicks case [11] is an addition to the long list of judgements on misleading advertisement. It is interesting to note that the High Court allowed the circulation of the same advertisement in print media, however, restrained the telecast of the same. We understand that the differentiation between print media and electronic media lies in their impact on the audience. Since electronic media uses a combination of audio-visual techniques, it is more likely to influence its audiences and hence requires stricter regulations. Hence, the same advertisement was allowed to be published in print media, however, restrained from being telecast on television.

Additionally, an analysis of the case laws referred above shows that the law relating to misleading advertisements is extremely subjective and a small alteration in the fact may affect the outcome. It appears that while it is not disparaging and misleading for a seller to compare his products with his competitor’s and even claim that his product is better than those of his competitor’s, it may be disparaging and misleading if the competitor’s goods are shown to be inferior to the seller’s.

*Partner, Cyril Amarchand Mangaldas, Advocates & Solicitors

**Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

***Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

[1] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020.

[2] Romesh Thappar v.  State of Madras, 1950 SCR 594

[3] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India,   (1985) 1 SCC 641

[4] Tata Press Ltd v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139 .

[5] Horlicks Limited v Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

[6] Reckitt & Colman of India Ltd. v. M.P. Ramchandran , 1998 SCC OnLine Cal 422

[7] Dabur India v. Colortek Meghalaya Pvt. Ltd. , 2010 SCC OnLine Del 391

[8] Pepsi Co. Inc.  v. Hindustan Coca Cola Ltd. , 2003 SCC OnLine Del 802 the Court laid the following principles:

• Intent of the advertisement;
• Manner; and
• Story line and the message sought to be conveyed.

[9] Havells India Ltd. v. Amritanshu Khaitan , 2015 SCC OnLine Del 8115

[10] Gillette India Limited v. Reckitt Benckiser (India) Private Limited, 2017 SCC Online Bom 207

[11] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

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Gain of Function: what if we can prove that one cup of drink A is twice as beneficial as drink B. Today we are talking about genetically modified food and nutrition, so much R&D is going into a Health Product that we cannot but look into the scientific data available. so if the declaration in the AD can be backed by efficacy then by all means we should highlight the advantages of one product over another. concur, there is no room for misleading advertisement!

Misleading advertisement is one of the big headache to the world or the nation. We all need to understand before trust any miss leading advertisement. Thanks for highlighting this issue. Subscribed your blog.

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Widely shared fake news stories from 2020-23, widely shared fake news stories from 2016-18, fake news exercise.

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• Legitimate News Sources
• Books & Articles
• Video Resources
• Other Resources
• Case Study 1
• Case Study 1 - Explained
• Case Study 2
• Case Study 2 - Explained

On August 20, 2022, a TikTok video was posted, claiming that Disney World was going to lower the drinking age to 18. It was stated that Disney World was battling the Florida government in court to get a resort exemption, which would allow anyone 18 and older to drink on property. The TikTok video acquired millions of views in just a couple days. This story was also posted on facebook, instagram, and Twitter. Shortly after, the story made it on ABC 10 News.

The video originated from an article posted on a blog called Mouse Trap News. Small segment of the original article below. Full article can be found here: "Drinking Age at Disney World May be Lowered to 18".

The Claim: Walt Disney Company was seeking a resort exemption to lower the drinking age to 18 years old, in Disney World, Florida.

To find the truth about this story, we will use Michael Caufield's  Four Moves and a Habit. 

1. Check for previous work: For this case, we looked up this claim on  Snopes ( fact checking resource ). They published an article on the story and labeled it as fake news satire. It was also aired on ABC 10 News, on their fact or fiction  segment, where it was determined to be fiction. The news segment can be viewed  here .

2. Go upstream to the source:  The TikTok video originally came from an article published by the same TikTok user, @mousetrapnews. They have their own webpage dedicated to news stories about disneyland parks.  The original article claimed that Disney was battling Florida in the courts over the minimum drinking age, but no evidence such as sources or court filings are mentioned.

3. Read laterally: Upon further exploration of the site itself, their  About  page actually bluntly admits that they only write fake stories about Disney Parks (see picture below).

4. Circle back: If we go back to the main article explaining the story, it reads in the description an explanation of the National Minimum Drinking Age Act passed by congress and signed into law by President Reagan. The article then asks the reader a question "Didn’t think you would get a history lesson from us, did you?" and "Now that we have set up the act, we have some Disney news to go with it.", these playful comments already makes the story a little suspicious. We can also check another form of social media the user has. They also had an Instagram account, where they state "Real Disney News That is 100% Fake" and "The Onion Of Disney News".

 Interestingly enough, many of the Mouse Trap News fake news stories have been featured on different news websites and shows, such as The Associated Press, USA Today, and on The Tonight Show with Jimmy Fallon .

The Conclusion: The Walt Disney Company did not seek a resort exemption to lower the drinking age to 18 years old, in Disney World, Florida.

In October 2020, posts on social media and articles were published claiming that a new CDC study found the Majority of those infected with COVID-19 ‘always’ wore Masks (examples of the articles below). This claim was further elevated on October 15, 2020, a town hall broadcast by NBC, interviewed U.S. President Donald Trump. During this interview Trump stated, " But just the other day, they came out with a statement that 85% of the people that wear masks catch it." Trump's source for this claim was the new study published by the CDC. Full transcription of this interview can be found  here.  This information was ultimately, misinterpreted. Below is the CDC's tweet addressing the misinformation.

The Claim: CDC reported that the majority of those infected with COVID-19 ‘always’ wore masks.

• Check for previous work:  For this case, we looked up this claim on  Snopes and FactCheck.org ( fake news fact checker ). Both resources claim the information as false and misleading.
• Go upstream to the source:  The claim originated from a study published by the CDC titled,  Community and Close Contact Exposures Associated with COVID-19 Among Symptomatic Adults ≥18 Years in 11 Outpatient Health Care Facilities.   This study examined how SARS-CoV-2, the virus that causes COVID-19, may be transmitted both within communities and between close contacts. While Trump used the correct percentage from the study, the data was misinterpreted. The study reported that 85 percent had reported wearing masks always or often. The study also found that for those in the group who had tested negative, 89 percent had reported wearing masks with the same frequency. The CDC pointed out that "People w/ and w/o COVID19 had high levels of mask use in public. Even for those who always wear a mask, there are activities where masks can’t be worn, like eating or drinking. People w/ COVID-19 were more likely to have eaten in a restaurant." The study noted, "Exposures and activities where mask use and social distancing are difficult to maintain, including going to locations that offer on-site eating and drinking, might be important risk factors for SARS-CoV-2 infection."
• Read laterally: The claim is challenging the notion that wearing a mask is not effective at preventing the spread of COVID-19. We have to take in consideration that this study was investigating mask wearing in community activities. CDC's website provides Science Briefs  which is a summary of the scientific evidence used to inform specific CDC guidance and recommendations. In one  brief , they state, "individual prevention benefit increases with increasing numbers of people using masks consistently and correctly." So, the people from the original study might have not been using their masks effectively if repeatedly taking them off in social settings. Other medical experts such as Dr. Anthony Fauci, states "Masks aren't perfect. They help, but they're not a guarantee that you're not going to get Covid if you wear a mask”.  
• Circle back:  If you find yourself getting overwhelmed by other sources on the claim, circle back to the claim and investigate the background of that source. Using the  AllSides Media Bias Chart , we can see that  The Federalist  is listed on the very, far right side of the chart. The author of that article, Jordan Boyd, has her twitter page linked to her name and we can see that her posts are on the far right of the political spectrum. The  California Globe  is listed as a conservative leaning publication on  Snopes,  many of their other posts written by the author lean to the right of the political spectrum. You can also circle back to the original study the claims were based on and question the accurateness. One issue with the study is the data was self-reported through phone surveys. So, people could have inaccurately reported mask use since there was no video monitoring to confirm. 

Check Your Emotions:  The use of masks and its effectiveness against COVID-19 was a highly politicized topic when the pandemic started. By downplaying the severity of the virus (despite all the losses recorded by the CDC), President Trump's attitude about the pandemic and the use of masks contributed the view that the COVID-19 public health crisis should be viewed as a political issue.

Conclusion: The CDC did not report that the majority of those infected with COVID-19 ‘always’ wore masks.

For more examples on COVID-19 myths and using Michael Caufield's  Four Moves and a Habit to fact check them, visit our   COVID Vaccines Libguide.

• Jan. 6 Capitol Riot
• COVID-19 and Vit. C
• Adrenochrome Shipment
• RNA in Chicken Feed

The Claim: The U.S. Capitol police gave the protesters an "okay" to enter the Capitol.

• Check for previous work: For this claim, we looked up this claim on Factcheck.org  (fake news fact checker). Factcheck.org debunks the story here.
• Go upstream to the source: this claim originated from a video clip that was posted all over social media. This video clip was posted by a group of Trump supporters who attacked the United States Capitol Building in Washington, D.C., after U.S. President Donald Trump did not win the 2020 presidential election, on January 6, 2021. They uploaded a video where shows a police officer “appears to tell” the group that they wouldn't stop them from entering the building. However, nowhere in the video does the police make that claim. A fake news website called, The Gateway Pundit, reported the same claim on Facebook and Instagram. Even a radio show in Texas called “Walton & Johnson,” ran a similar headline.
• Read laterally: the next step would be to see what others are saying about this claim. In this case we should look at what the police officers in this video clip said about the incident. US Capitol police officers said in an email statement to factcheck.org , that the officers were blocking the whole way and attempting to de-escalate the situation by telling the crowd to not attack or assault and to remain calm. The Justice Department reported that about 140 police officers were assaulted that day.
• Circle back: If you find yourself, getting overwhelmed by other sources on the claim, circle back and investigate the background of that source. If we look back to the actual incident on January 6, 2021, we know from ample public evidence released by the FBI showed Trump supporters violently assaulting officers at the Capitol. Other shown footage included Trump supporters breaking through a metal barrier outside the capital and breaking windows of the building to enter.

Conclusion: The U.S. Capitol police never gave protestors permission to enter the Capitol.

The Claim: High doses of vitamin C can cure COVID-19.

• Check for previous work: Throughout the year 2020, many websites and social media posts were claiming how high doses of vitamin C could cure and/or be an effective treatment for COVID-19. For this case, we looked up this claim on Snopes (fact checkering source) which they claim the information as false and misleading.
• Go upstream to the source: These claims stemmed from multiple studies detailing how vitamin C can help support the bodies immune system. According to Harvard Health Publishing , vitamin C has some marginal benefits for the common cold, such as reducing the duration of symptoms, if it is taken before catching a cold. Those benefits can be achieved with a diet that includes 200 milligrams of vitamin C, which is easily obtainable with a daily diet that includes fruits and vegetables .
• Read laterally: To gain additional background on this claim, we can read multiple sources and this this case see if it has been tested in trials. The CDC ultimately reported that there was insufficient evidence for the panel to recommend either for or against vitamin C for the treatment of COVID-19 and non-hospitalized patients. Most of the trials had a limitation such as small sample sizes, study designs that had different doses or formulations of vitamin C and different outcome measures.
• Circle back: If you find yourself, getting overwhelmed by other sources on the claim, circle back to the claim, and investigate the background of that source. In this particular claim, there is some truth and vitamin C is good for your immunity. However, some of the hype around these claims came from unpublished sources, fake news, personal websites, and from "influencers" on social media. We can refer to the CDC website and peer review published articles about the relationship between COVID-19 and vitamin C. Clinical trials can be found on the ClinicalTrials.gov website.

Conclusion: doses of vitamin C are not a proven as an effective cure for COVID-19.

Claim: Putin intercepts adrenochrome shipment

1. Check for previous work: In this case if we looked for "adrenochrome putin shipment" to check for previous work, we would find that politifact.com already did a fact check on this story.

2. Go upstream to the source: This example is from Real Raw News . This website is known for fabricating stories; if that's information you knew coming into this evaluation, you would know this is an automatic red flag and we could stop here. However, if you didn't know that, you could make a few judgements about what other stories are on the page to get a sense of the angle and political bias for this news source. If you research Andrei Zakharov, whose name was used as a source of information, you'll find that he is a Russian journalist that works for the BBC Russian Service, not as Russian FSB Agent. As a story featuring adrenochrome and blood harvesting with a history of conspiracy theories behind it, you should already be skeptical. Looking up some of the facts in the story help us determine more about its truthiness.

3. Read laterally: Given what we've learned from steps 1 and 2, at this point in the evaluation we could stop our search, dismiss the story, and move on with our lives. However, if we aren't satisfied with what we found, out next step is to look for other stories about this issue. Are other reports of this story coming from reputable sources? Is the story reported elsewhere with the same facts? Are there discrepancies in what's being reported? This is the step where we need to be paying extra attention to who's publishing the story that corroborates this narrative. On the internet you can find pretty much anything you look for, but "anything" isn't always an accurate story to trust.

4. Circle back: There's plenty of facts within this story for us to investigate and check. However, we eventually want to come to a conclusion and circling back will bring us to the question of whether this story has any truth. Given what we've learned: no, this is not factual.

Check your Emotions: The habit we're practicing throughout is about checking our emotions. Do I want this story to be true? Does this story sound too outrageous to be true? Am I attached to what the truth about this story is one way or another?

The Claim: chickens are not laying eggs, because RNA is being added to commercial chicken feed.

• Check for previous work: For this case, we looked up this claim on politifact.com. This resource debunks it here.
• Go upstream to the source: The claim originated from a published research article titled, " Messenger RNA sequencing and pathway analysis provide novel insights into the biological basis of chickens’ feed efficiency. " This study aimed to characterize the biological basis of differences between chickens with low and high feed efficiency, with a long-term goal of improving the ability to select for feed efficiency. Nowhere in the article did it mention adding RNA to chicken feed. RNA sequencing was being used to see how differences in feed efficiency can be explained by what levels of RNA are produced by the chickens' cells.
• Read laterally: The next step would be to see what others are saying about this claim based on the article. PolitiFact actually did many email interviews with experts in the field, to talk about the claim. Multiple experts said commercial feed manufactures were not adding RNA to chicken feed, and that this claim was a misinterpretation of the data. The FDA also confirmed that RNA is not on its own, a feed additive. The articles cited from the original TikTok video are not relevant to the argument made in the video. The FDA also stated that there are many ways why a chicken's egg-laying behavior and quantity could change. They recommended consulting a licensed veterinarian, who can examine the animal and take a detailed medical and diet history.
• Circle back: If you find yourself, getting overwhelmed by other sources on the claim, circle back to the claim, and investigate the background of that source. The first thing one should question is how RNA is being referred to in the post. RNA stands for ribonucleic acid, which is a naturally occurring nucleic acid found in all living cells. So, the claim of adding synthetic RNA into commercial feed does not make any sense. Furthermore, a search can be done to confirm what common factors are affecting chicken egg laying. Common reasons listed were management practices, improper nutrition, parasite infection, disease, lighting, and stress.

Conclusion: RNA is not being added to commercial chicken feed.

• Trump Bills Michelle Obama
• "Pizzagate"
• Donald Trump Wins the Popular Vote
• Hillary's Health
• Muslims Demanding Handouts
• Burning Tipis at Standing Rock
• Student Desecrates Constitution

This example is from Before It's News; it's also featured on at least one other similarly fake website. The amounts supposedly owed by the Obamas are pretty unbelievable. Even if the presidential couple had indeed bought everything the article claims they did, the total would not come anywhere close to $11 billion, a figure equal to the GDP of a small country. It also includes some grammatical issues, and "eleventy" isn't a word.

It's also worth looking at the Before It's News site itself:

A few points:

• "Alternative," "Spirituality," and "Unexplained" are terms that one doesn't find among the tabs on any legitimate news site.
• No professional news organization lets just anyone "upload news."
• The presence of advertising, and the nature or quality of the products being advertised, is not a sound indicator of the site's reliability. Ads for Duracell batteries and Mapquest could quite conceivably show up in the margins of The Seattle Times ' website , for example. Newspapers, in both their print and online versions, generally cannot survive without ad revenue.
• This site deals heavily in sensationalist headlines (the ones underlined are just some of the most outrageous).

Among the most notorious fake news stories of 2016 was one alleging that Hillary Clinton was running a child-prostitution ring out of a Washington, D.C., pizzeria. This had real-world consequences for the employees of that pizzeria when an armed man decided to "self-investigate" the rumors, as described in  "Dissecting the #PizzaGate Conspiracy Theories,"  by Gregor Aisch, Jon Huang, and Cecilia Kang.

During the 2016 election, another persistent fake news story was that Donald Trump won both the popular vote and the electoral college vote. That Trump won the electoral college by a clear margin is undisputed. While the federal government did not release the official results of the popular vote until mid-2017, a great number of sources, ranging from the more conservative  The Wall Street Journal  to the more liberal  The New York Times reported Hillary Clinton winning the popular vote by margins ranging from approximately a million votes (on Nov. 9, 2016) to three million (NYT estimate as of Feb. 10, 2017).

During the 2016 presidential campaign, fake news sites circulated several stories alleging that Hillary Clinton was in poor health, the implication being that she was not fit enough for the rigors of the presidency. Fake news site 70News dedicated an entire section to these rumors, most of which were bolstered by photos or video clips showing Clinton in moments of apparent frailty or disorientation. This illustrates a common fake news tactic: the use of tidbits of truthful imagery to support exaggerated or unsubstantiated claims. Laura Mallonee writes about this phenomenon in " How Photos Fuel the Spread of Fake News ."

Not all fake news is geared toward a conservative audience; liberals may be just as quick to believe falsehoods that seem to confirm their hopes and fears. A February 2017 story run by Alternative Media Syndicate claimed that police forces arrayed against the pipeline protesters at the Standing Rock Indian Reservation raided and burned a protester camp, offering graphic imagery of flaming tipis as proof. This story is completely false; the image was taken from a 2007 HBO film, Bury My Heart At Wounded Knee . Snopes.com debunks the story here .

In February 2018, after surviving a shooting in which 17 of her schoolmates died, Florida teenager Emma Gonzalez became an outspoken proponent of gun control legislation. Not long after, imagery of her apparently tearing up a copy of the U.S. constitution went viral on right-wing websites. This imagery was doctored ; the originals came from a Teen Vogue photo shoot in which Gonzalez symbolically tore up a target sign. Photo manipulation is a time-honored propaganda tactic, but is now easier than ever thanks to Photoshop and other editing tools.

• Robert Amnor story

Work in groups of 3-5. Using any methods you can think of, try to determine whether the story is (a) false, (b) true, or (c) a mix of truth and falsehood. Go back to the home page of this guide if you need some direction on what to look for.

Discuss which (if any) of the fake news hallmarks from the first page of this guide are evident in this story.

• << Previous: Getting Started
• Next: Types of Misinformation >>
• Last Updated: Apr 16, 2024 12:19 PM
• URL: https://libguides.lib.cwu.edu/fakenews

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Identifying Misleading Advertising

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J. Edward Russo, Barbara L. Metcalf, Debra Stephens, Identifying Misleading Advertising, Journal of Consumer Research , Volume 8, Issue 2, September 1981, Pages 119–131, https://doi.org/10.1086/208848

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A procedure for identifying misleading advertising is presented, based solely on measured consumer beliefs. An advertisement is misleading if an exposed group holds more false beliefs than a comparison group. When ten allegedly misleading advertisements were tested, two were identified as incrementally misleading, and four others were shown to be exploitively misleading.

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Home / Editorial

Mercantile law, patanjali case on misleading advertisement,  01-mar-2024.

• Consumer Protection Act, 2019

Source: Indian Express

Introduction

Recently, the Supreme Court delivered a resounding rebuke to Patanjali Ayurved, led by Baba Ramdev, in the case of the Indian Medical Association v. Union of India (2022) . The Court's decision stemmed from Patanjali's dissemination of misleading advertisements , prompting a ban on its marketing activities until further notice.

What are Allegations Against Patanjali?

• The Indian Medical Association (IMA) lodged a petition in August 2022 following Patanjali's publication of an advertisement denigrating allopathic medicine.
• Title of advertisement in conflict is MISCONCEPTIONS SPREAD BY ALLOPATHY: SAVE YOURSELF AND THE COUNTRY FROM THE MISCONCEPTIONS SPREAD BY PHARMA AND MEDICAL INDUSTRY
• Ramdev's statements labeling allopathy as a " stupid and bankrupt science " and attributing Covid-19 deaths to allopathic medicine further fueled the controversy.
• Additionally, there were accusations of spreading false information related to vaccine during Covid-19.

What are Legal Arguments Against Patanjali?

• The IMA contended that Patanjali's advertisements violated the Drugs & Other Magical Remedies Act, 1954 (DOMA) , and the Consumer Protection Act, 2019 (CPA).
• Under Section 4 of the DOMA, publishing misleading advertisements regarding drugs is prohibited, punishable by imprisonment or fines.
• directly or indirectly gives a false impression regarding the true character of the drug; or
• makes a false claim for the drug; or
• is otherwise false or misleading in any material particular
• in the case of the first conviction, with imprisonment which may extend to six months, or with fine, or with both;
• in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both.
• Furthermore, Section 89 of the CPA imposes stringent penalties for false or misleading advertisements.
• It states that any manufacturer or service provider who causes a false or misleading advertisement to be made which is prejudicial to the interest of consumers shall be punished with imprisonment for a term which may extend to two years and with fine which may extend to ten lakh rupees; and for every subsequent offence , be punished with imprisonment for a term which may extend to five years and with fine which may extend to fifty lakh rupees.
• Despite agreements between AYUSH and regulatory bodies , Patanjali persisted in flouting advertising regulations, violating the Memorandum of Understanding signed by the Ministry of AYUSH and the Advertising Standards Council of India in January 2017.

What is the Response of the Supreme Court in Patanjali Case?

• Despite prior warnings and assurances, Patanjali persisted in publishing misleading advertisements , prompting the Court to take decisive action.
• The Court prohibited Patanjali from advertising or branding products addressing diseases specified in the DOMA and cautioned against adverse statements toward conventional medicine.
• The court has fixed the hearing date for 19th March 2024.

In conclusion, the SC's verdict against Patanjali underscores the importance of ethical advertising and consumer protection. By holding corporations accountable for misleading practices, the Court upholds the integrity of the healthcare industry. Moving forward, regulatory bodies and corporations must adhere to stringent advertising standards to safeguard public health and trust.

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Unveil Ad Truths

Common Types of Misleading Statistics in Advertising – And How to Spot Them

Updated October 2023

In recent years, misleading statistics examples have become increasingly prevalent. Companies and advertisers have realized that statistics can be manipulated to present their products in the best light possible and, as a result, consumers are often presented with false advertising.

One of the reasons why misleading statistics are so widespread in advertising is that many consumers are unaware of the techniques used to manipulate data.

In this post, we’ll look at the most common types of misleading statistics, the industries that most often use this bad practice, and give you an idea about how to spot them.

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The Power and Pitfalls of Statistics in Advertising

Consumers look for facts when shopping for products and services, and the internet makes it easy for the normal person to gather data and learn insights into various topics. At the same time, the internet is a hotbed for misinformation, false advertising and misleading facts.

Unfortunately, there’s still a gray cloud of knowledge on the techniques used to gather that data and whether the company behind the ad is as trustworthy as one thinks. That’s why all consumers should understand why misleading advertisements have a serious impact.

How Statistics Influence Consumers

Before purchasing a product or service, consumers want to view facts to make sure their purchase will benefit their lives and solve their pain points.

That’s why many brands mention statistics in their marketing and advertising campaigns. Statistics offer an easy way for leads to consume and compare data; users can process percentages and graphs faster than narratives, and they will have an easier time evaluating the effectiveness of the product or service.

Let’s take the food and beverage industry as an example.

According to the National Library of Medicine , product information and labeling are important factors consumers use to decide whether or not to try a food or beverage. Companies not only use nutritional facts to convey this data, but also state the health benefits of the food or beverage. This data is essential for consumers to maintain a healthy diet and know how the food may impact their health.

Jumping to Conclusions too Early

While mentioning statistics and claims may be effective in advertising, consumers experience a major problem: jumping to conclusions early.

Before going into product research, people may already know what they want or are looking for. They will still feel more comfortable conducting research before purchasing anything, but most consumers will approach this process with a goal.

If a user finds an anti-aging skincare moisturizer that touts “90% of users experienced fewer wrinkles,” this statistic will be enough for consumers to purchase the product. They won’t realize or even care that it’s a false advertising claim. When the numbers are that high (in a positive light), people won’t ask themselves more questions.

For instance, the brand could have conducted the survey on college students and not those with aging symptoms, creating biases in the research.

This leads us to our next point.

Biases in the Claims  – and the Consumer

Companies are always going to be biased for their own product or service. But it doesn’t help that consumers have their own biases when finding products and services to use. If people want something to be true, they will find every source to prove their point.

The keto diet is the perfect example. During the 2010s, this diet was all the rage. This diet encouraged users to eat more fat and protein and fewer carbs.

But the real reason why people followed this diet was to consume more of their favorite fatty meats, notably bacon. When you go to Google and search “keto diet and bacon,” you’ll find numerous websites (mainly meat companies and keto websites) encouraging users to include bacon in their meals:

At the same time, if you search “is bacon healthy,” you’ll find sources that state bacon is loaded with cholesterol and sodium, which still increases your risk of heart disease.

In this example, we see the meat and keto food companies using false advertising to encourage users to switch to keto to eat more bacon while losing weight. But the statistics are limited; they not only ignore the additional health issues of eating bacon but fail to mention how to shop for bacon in the healthiest way (such as checking sodium levels).

Thin Line Between Persuasive and Misleading

Approaching product research with biases and jumping to conclusions presents a major issue with statistics in advertising: the veil between persuasiveness and misleading data.

Good advertising is persuasive. This ensures that leads connect with the ads and are more compelled to buy a product. When advertisers create campaigns, they focus on one or more of these qualities:

When powering one or more of these factors in advertising, your prospects will find a use for your product or service and add to the sentimental value of your ad.

But on the other hand, advertisers can use these factors to capture vulnerabilities, using misleading statistics to entice action and even spread misinformation. They may also do this with claims and false advertisements.

The scariest part is that these claims may not always be considered fraudulent. Claims such as “X skincare product can reduce wrinkles” and “bacon is part of a keto diet” are true, but the companies fail to address the high intent targeting and selection biases they use to profit from these advertising claims.

Truthfulness in Advertising Is Crucial for Consumer Trust

Trust and credibility are two of the most important factors businesses need to attract and retain customers. That said, it takes time and effort to build long-term relationships with consumers. Some businesses may resort to statistics that hone in on biases and impulsive buying, ensuring that they get a quick sale.

Even though consumers can access data quickly online, a negative brand reputation does serious damage in our digital world. This is why creating honest online ads is one of the key ways to build success. Plus, governing bodies have many advertising rules, and adhering to them will prevent you from fines and lawsuits.

How Brands Can Use Statistics Ethically

While some brands have used misleading statistics to increase profits (as we will discuss later), companies should also back up the effectiveness of their product with data. The key is to do so ethically.

First, give your consumers enough insight to look beyond the numbers. In other words, offer transparency into how you collected your data, the general demographics of any research participants, and how you reached your conclusions.

Staying open about the context is also important. Don’t make your study about selling products; instead, let the data speak for itself.

Avoid any biases in your research – be open if there are any flaws or drawbacks you find. If you offer any data visualizations, make sure they’re easy to interpret, have enough data so your consumers can follow the chart or graph, and always provide sources.

Industries Most Affected by Misleading Statistics

While all industries are affected by misleading statistics, some are more susceptible than others. These include:

The Tobacco Industry’s Manipulation of Data

The tobacco industry has a long history of manipulating data  and creating misleading statistics to downplay the risks associated with smoking. For instance, in the 1950s, the industry commissioned a research committee that created industry-sponsored research that downplayed the link between smoking and cancer:

“This tactic offered several essential advantages. The call for new research implied that existing studies were inadequate or flawed. It made clear that there was more to know, making the industry seem a committed participant in the scientific enterprise rather than a self-interested critic… [The] research program would be controlled by the industry yet promoted as independent.”

This was a classic case of cherry-picked data to support its claims. This “research” was widely criticized by the scientific community, but it succeeded in creating doubt in the minds of consumers about the link between smoking and cancer.

This doubt allowed the tobacco industry  to continue selling their products for many years, even as evidence mounted about the dangers of smoking:

In addition to commissioning studies, the tobacco industry has also used statistics that show that only a small percentage of smokers develop lung cancer, without mentioning that smoking increases the risk of many other health problems, such as heart disease and stroke.

By focusing on a single statistic, the tobacco industry created the impression that smoking was not as dangerous as it really is.

Weight Loss Products and Dietary Supplements

Advertisers may use small sample sizes or manipulate graphs to make it appear that their weight-loss product is more effective than it really is. An advertiser may conduct a study with biased “researchers” and a small sample size. They may find that their product resulted in a 50% weight loss, without mentioning that the study only included a handful of people.

Or, as in the case of Sensa’s weight loss powder, they may simply use language like “ clinically proven ” without linking to any studies:

Sensa Products, the CEO Adam Goldenberg and their paid endorser Dr. Alan Hirsch were ordered to pay $26.5 million as part of a $46.5 million judgment .

This type of misleading statistic can be particularly dangerous, as it can lead consumers to believe that a product is safe and effective when it is not :

In addition to manipulating statistics, weight loss product advertisers also often use before-and-after photos in their advertising. These photos can be manipulated in various ways, such as using different lighting or camera angles, to make it appear that the product is more effective than it really is.

By the way, it’s worth looking at this list of incredible weight-loss claims , including one ad for “lobster-inspired slimming cream…that simulates a lobster’s ability to shrink its body” (!?):

Misleading Food and Beverage Health Claims

Companies in the food and beverage industry often use online advertising to claim their products are healthy or low in calories without providing accurate data to support these claims. A company may claim that its product is “low-fat” or “low-calorie” without mentioning that it is also high in sugar or sodium.

Maple Leaf Foods’  deli meat states on the package “no added preservatives” even though it actually contains nitrite, which is a preservative that is linked to cancer. Although the company denied that its labels were written in a misleading way, it later amended its packaging to say that its deli meat does contain nitrite after a CBC Marketplace investigation:

In addition to misleading claims about the nutritional content of their products, food and beverage companies  also often use statistics in their online and print ads to create the impression that their products are more popular or healthier than they really are.

For instance, a brand may claim that its product is the “number one choice” of consumers without mentioning that this claim is based on a small survey of a select group of people.

Other industries include:

• Beauty industry:  Studies may be conducted on participants with a specific skin type, distorting the study results. Small or skewed samples may be used and will result in an inaccurate hypothesis.
• Mainstream media: Modern mainstream media outlets exercise biases when reporting, such as favoring a certain political party over another. This causes the mainstream to report on false information or exaggerating facts. Many media outlets also favor the status quo and may choose to report on certain stories over others.
• Alternative health industry: Some products under the “alternative” and “complementary” treatment categories (such as supplements, herbs and essential oils) often lack the research that conventional medication is required to undergo. That means consumers may lack vital knowledge of these products, such as side effects, allergy information and drug interactions.

Note: This doesn’t necessarily mean that supplements are backed by false claims. Unlike drugs, which are designed to treat or cure diseases, dietary supplements are intended to provide nutrients that might be missing from a person’s diet. As such, they’re regulated differently. The FDA doesn’t review dietary supplements for safety and effectiveness before they are marketed, but it does monitor their safety once they’re on the market.

Related Content:   187 Online Advertising Statistics: Privacy, In-App, PPC, Social and More

Techniques Used to Manipulate Data in Advertising

There are a range of techniques used to manipulate data in advertising, and understanding these techniques is essential for consumers to make informed decisions about the products and services they choose to buy. By being aware of these techniques, consumers can avoid being misled by false advertising statistics.

Here are the most common types of false advertising – and how to spot them.

Cherry Picking Data

This involves data mining and selecting only the data that supports a particular claim while ignoring other responses that contradict it. This can give a skewed view of the information and present an inaccurate representation of the results.

For example: A company may only showcase the positive reviews of a product while ignoring the negative reviews . This can lead consumers to believe that the product is universally well-received when, in reality, there may be a significant number of dissatisfied customers.

How to spot this technique:

• Look for the complete picture:  Examine whether the presented statistic provides a comprehensive view of the topic or only focuses on a single data point.
• Seek additional sources:  Don’t rely solely on the information provided in the advertisement. Find independent sources, such as reputable research studies or industry reports, to gather a broader perspective.
• Evaluate sample size and representativeness:  Consider whether the sample size used in the statistic is sufficient and representative of the target population.
• Examine the source of the statistic: Determine the credibility and expertise of the source providing the statistic. If the source has a vested interest or lacks objectivity, scrutinize whether the advertisement provides references to validate the statistic.
• Seek context and supporting evidence:  Look for contextual information that helps you understand the statistic’s relevance and significance. A single statistic without proper context may lead to misinterpretation.
• Trust your instincts and be skeptical:  Develop a healthy skepticism when encountering advertising claims and statistics. If something appears too good to be true or lacks transparency, it is essential to question the validity of the presented data.

Misrepresenting Sample Sizes

Misrepresenting sample sizes is another statistical technique used to manipulate data in advertising. Companies may use small sample sizes, leading to a distorted quantitative analysis. Alternatively, they may use a sample size that does not represent the target population, which can lead to an inaccurate representation of the data.

When brands deliver their product to a third-party lab, they often test small-sized samples. In reality, consumers will get more use out of a product than this small amount – specifically, over a period of time. Therefore, testing a small sample size of the product produces misleading results.

This can also happen during other forms of testing, such as surveys. A company may only survey 20 users, whose opinions vary radically from the general population.

For example: A company may claim that 90% of their customers are satisfied with their product but only surveyed 10 people. This sample size is not large enough to accurately represent the views of the entire customer base and may not be statistically significant.

• Look for sample size disclosure:  Examine whether the advertisement provides information about the sample size used to generate the statistic. Transparent and trustworthy sources typically disclose the sample size to lend credibility to their claims. Lack of sample size information or vague references to “a study” without specific details can raise suspicion.
• Evaluate sample size in relation to the claim: Consider whether the sample size used in the study or survey is appropriate for the claim being made. Different types of claims may require larger or more representative sample sizes to yield statistically reliable results. Extraordinary claims based on small sample sizes should be examined more critically.
• Assess representativeness:  Determine if the sample used in the study or survey is representative of the target population. A truly representative sample should reflect the demographic, geographic, or other relevant characteristics of the broader population. If the sample is not adequately representative, the results may not be generalizable or applicable to the larger population.

Using Ambiguous or Vague Terms

Another technique used to manipulate data in advertising is the use of ambiguous or vague terms.

For example: Advertisers may claim a product is “clinically proven” without specifying which study or trials they refer to. This can lead to confusion for consumers and an inaccurate representation of the product’s efficacy.

Similarly, claims such as “all natural” or “organic” are half truths; they may not have a standardized meaning and can be used by companies to make their products seem healthier or more environmentally friendly than they actually are.

• Scrutinize the wording:  Pay close attention to the specific terms and phrases used in the statistic or claim. Look for overly general or ambiguous language that lacks clarity and precision. Vague terms may include words like “many,” “most,” “some,” or “a significant number.”
• Seek concrete numbers or specifics:  Look for specific and quantifiable information within the statistics. Misleading ads often rely on vague terms to avoid providing concrete numbers or meaningful details. Concrete numbers or specific percentages provide a clearer picture and allow for better evaluation.
• Look for contextual information: Evaluate whether the advertisement provides sufficient context and supporting details to explain the statistic. Ambiguous or vague terms may create a sense of importance or superiority without substantiating evidence. A lack of specific examples, references or data sources can indicate a lack of credibility.
• Consider the absence of benchmarks or comparisons: Misleading ads may use ambiguous terms to avoid making direct comparisons or benchmarks against relevant standards. Look for unclear references to industry standards, competitor performance, or other relevant benchmarks. This lack of comparison can make it challenging to evaluate the significance of the statistic.
• Analyze the overall message:  Assess the broader message conveyed by the advertisement. Misleading ads often use ambiguous terms to create a positive impression without providing substantive evidence. If the statistic is presented in a way that seems more focused on persuasion than providing factual information, it is worth investigating further.
• Evaluate the source and credibility:  Consider the credibility and expertise of the entity or source presenting the statistic. Misleading ads may rely on vague terms to mask a lack of reliable data or to exaggerate claims. Investigate whether the source is reputable and known for accurate information.
• Cross-reference with reliable sources:  Seek additional information or data from independent and trustworthy sources. If the advertisement fails to provide specific information, reliable sources can help verify or refute the claims. Multiple sources with clear and concrete information enhance the credibility of the statistic.

Manipulating Graphs and Visuals

Misleading graphs in advertising can be another technique used to manipulate data in advertising. Advertisers may use a misleading graph or other visual aid that does not accurately represent the data or make changes to the scale of the graph to make the results appear more impressive than they really are.

For example:  A graph may be designed to exaggerate the difference between two data points, making it seem like there is a larger gap than there actually is. Alternatively, a graph may have a y-axis that starts at a number greater than zero, making a small difference seem much larger than it really is.

• Examine the axes:  Look closely at the graph’s axes or visual representation. Misleading ads may manipulate the scale or range on the axes to exaggerate or minimize the impact of the data. Pay attention to the units of measurement and the intervals between values.
• Assess the proportions:  Evaluate whether the proportions and sizes of the elements in the graph accurately represent the data being presented. Misleading ads might manipulate the size of the bars, pie slices, or other visual elements to distort the perception of relative values or percentages.
• Check for truncated or omitted data:  Look for any signs of truncated or omitted data points on the graph. Misleading ads may selectively remove data points or truncate the axis to make the differences between data points appear more significant or visually impressive.
• Consider the baseline:  Evaluate the choice of baseline or starting point on the graph. Misleading ads might manipulate the baseline to create an illusion of larger or more dramatic changes. By selectively choosing a specific baseline, the advertiser can distort the perception of growth, improvement, or decline.
• Assess the use of 3D effects: Be cautious of excessive or unnecessary 3D effects in graphs or visuals. While 3D elements can make a graph visually appealing, they can also introduce distortions that misrepresent the data. Pay attention to whether the 3D effects enhance understanding or simply serve as a visual trick.
• Consider the overall narrative:  Evaluate the narrative or message conveyed by the advertisement. Misleading ads may use manipulated graphs or visuals to support a predetermined storyline or to emphasize a specific point without accurately reflecting the underlying data. Assess whether the visuals align with the overall credibility and transparency of the ad.

Biased Questions

To extract data from participants, analysts will often ask questions to gauge their opinions and insights. However, these questions could be biased, often called “loaded questions.”

For example: Let’s say a group is testing a marketing tool. At the end of the trial period, the data analysts could ask “Were the materials helpful and organized?” and other positive questions, as opposed to letting the participants share their honest thoughts. In this way, the study won’t extract any useful data, only biased opinions :

A non-biased, or neutral, question in this case would be “Were the materials helpful?”

• Look at the questions asked: In most surveys, the brand will mention the questions they asked participants. See if they asked for negative/constructive feedback or offered an area for participants to share their honest feelings.
• Percentages: Many examples of misleading statistics in advertising will post the results in percentages, i.e., 75% of marketers found this tool effective. This shows the data analysts asked the participants the same question and likely gave them multiple-choice options as a response.
• Emotional responses: Advertisers often capture leads with emotions, so surveys may show the emotional connection participants had with a product; i.e., 60% of kids loved the taste of our peanut butter. This doesn’t show any constructive criticism or insights into the product.

Misleading Averages

Many advertisers will state “averages” to avoid any biases. In reality, the number can be inflated and over-exaggerated. This especially happens when researchers use data fishing (or data dredging).

For example: A company promoting a car seat with a message like “the average new parent loves our car seat for the safety and easy installation.” In reality, the company may not know how many new parents prefer their car seats over the competition, or only a small handful responded to their survey. Still, stating “average” rather than delivering conclusive data looks better in advertising.

• Not willing to tell the whole story: A brand can use “averages” in their advertising, but without conclusive data, their claims are misleading.
• Look for inequalities: When discussing “averages,” some companies may conform to biases or assumptions. Using the car seat example, a brand may say “the average mother” rather than “the average father” or “the average parent.”

Us vs. Them Content

Brands may compare their products and services to competitors to offer themselves as an alternative. But since they’re promoting themselves as the better option to the other brands, their arguments tend to sound one-sided and biased.

For example: One lead generation marketing company may write a blog comparing their services to a competitor. Instead of offering valuable insight into both services, the brand may make the blog a promotional piece and shoot down the other company.

• Vague critiques: Since the brand posting the blog is trying to attract clients, they will use vague arguments to explain why they shouldn’t do business with the other company and offer more detailed reasons to use their services.
• Draw conclusions quickly: The main company will critique the other company without offering screenshots, videos or proof that they used their products.
• Affiliate links: Even if a company doesn’t publish the blog on its own, it may partner with bloggers who will post the content for them – siding with the company doing business with them.

Sneaky Percentages

Percentages are an easy way for consumers to view data. But when percentages are presented without accompanying information on how the data was collected, it’s hard to assess the accuracy and reliability of these figures. Without knowing the sample size, the demographic of the respondents, or the methodology used in data collection, a percentage figure can be misleading.

For example: An advertising firm may release a case study saying they converted leads for “80% of clients.” Even though this number looks promising, it’s extremely vague. Does that figure represent the entirety of their clientele or just a small number? And what means did the company use to collect that data?

• Vague percentages: Some brands may find that 3 out of 8 clients responded negatively to their products but may not state that percentage as 37.5%. Instead, they may round it up to 38% or say “nearly 40%).
• Look for raw numbers: That said, the brand could also state “3 out of 8” instead of a percentage.

Made-Up Numbers

And, of course, there are times when a brand will release statistics showing the effectiveness of their product… without even conducting a study. They make up numbers to use in their advertising campaign to entice people to buy.

For example: A healthy food company can say 55% of their customers experienced lower blood pressure when eating their meals, without any data to support this claim. And because few people will do their own research and look into these claims, they’ll just believe it because it’s printed on the package of the product.

• Too good to be true marketing: Making a claim like “one meal can lower your blood pressure” is unrealistic. Use your best instinct to identify what’s real and what’s snake oil.
• Check different resources: If a brand makes any fraudulent claim, it will receive a fine from the FTC. Do some research, or a quick Google search at the least, to see if the business received past warnings and fines.

7 Examples of Misleading Statistics in Advertising

There are numerous case studies of the misuse of statistics in advertising, and these can provide valuable insights into how these techniques are used in practice. Here we’ll take a look at some common examples of misleading statistics.

Sephora and Clean Beauty Ad

With so many beauty products, consumers want to feel comfortable knowing what they put on their skin. That’s why the “clean beauty” movement took consumers by storm, making them feel more trusting of products without dangerous ingredients, harsh chemicals or fragrances.

However, debate opened up in the beauty industry, with many asking “What is clean beauty?” There’s very little monitoring over these products and a set “clean” standard to adhere to. That’s why mega beauty brand Sephora got in trouble with a “clean beauty” ad, and now it’s facing a lawsuit for false advertising:

Sephora was promoting their line as “clean,” but it still contained synthetic and harmful ingredients. The plaintiff claimed this was deceptive because not only did the company indulge in false advertising, but they charged more for these products.

What has Sephora said? On their website, they state that products in their clean line don’t contain parabens, mineral oils, phthalates, formaldehyde, or the sulfates SLES and SLS. At the same time, the plaintiff says this is inconsistent with the consumer view of “clean” beauty, which states that the product is free of all synthetic ingredients.

This lawsuit details a major problem: our understanding of clean beauty. If you do a Google search of “clean beauty,” numerous websites will have different claims – some state that clean beauty is free of the ingredients detailed by Sephora, while others state that the product is made of only natural ingredients.

Until a regulatory body offers a specific definition of “clean” beauty, brands must label their products as “clean” with caution, or else face a similar false advertising lawsuit.

Teami and Unsubstantiated Health Benefits

When Teami was first formed in 2013, it seemed to be a promising brand. They used fun and trendy social media posts and impressive influencer collaborations to promote their healthy teas. Or was there more than meets the eye with this company?

It only takes a quick glance at this blog to see Teami making serious medical claims :

In the first paragraph alone, they state that you have toxins lining the inside of your colon walls. But is this true? What facts and sources do they have to back up this claim?

This wasn’t enough for the FTC. They sued Teami, LLC, the company’s CEO, Adi Halevy, and Yogev Malul, an officer of Teami. In the lawsuit, numerous influencers who branded with Teami, who failed to mention they were being paid to advertise these teas, were also mentioned.

The lawsuit centered around their deceptive ads and touting the health benefits of their products. In the lawsuit, they point out specific teas and the medical claims each makes in their advertising, such as how the Teami Profit tea unclogs arteries and fights cancer cells.

In 2022, the FTC  refunded Teami consumers with a check worth no more than $45 each, totaling a payout of more than $930,000.

Bang Energy Super Creatine Ad

Since so many of us live busy lives, there are always plenty of brands and products emerging to keep us on the go. Bang Energy is one example. With plenty of caffeine and over 40 “fun flavors”, Bang Energy promises to provide an “explosive boost of energy.”

However, the energy drink market is oversaturated. Bang Energy had to get creative with its advertising to separate itself from competitors. And their tactic was taking advantage of the fitness industry and the nutrients workout enthusiasts use to enhance gym performance.

Bang Energy started promoting their drinks as containing “ super creatine “:

The problem is that super creatine doesn’t exist. Creatine is a naturally made compound that supplies energy to your muscles and is also found in protein-rich foods.

This claim caught the attention of competitor Monster Energy, who sued Bang over false advertising laws in 2023. Monster’s argument was that Bang used this misleading claim to take away business from them, and Monster was awarded $293 million. As a result, Vital Pharmaceuticals, Inc., Bang’s parent company, filed for Chapter 11 bankruptcy. A few months later, Monster agreed to buy Bang. However, the FTC still must review this deal .

Hey Dude Shoes Suppressed Negative Customer Reviews

Customer reviews are an essential way for consumers to research products. So when a brand removes their negative reviews , they don’t have an unbiased product research method.

That’s why Hey Dude Shoes was fined  when they suppressed 80% of reviews with less than four-star ratings in 2020-2022. Hey Dude Shoes did this by relying on a third-party review platform, where they rejected or didn’t post less favorable reviews.

In addition, Hey Dude Shoes failed to cancel customer orders, never issued shipping delay notices, and gave gift cards instead of refunding the order to the original form of payment.

The FTC stated that this violated the Mail, Internet, and Telephone Order Rule, and Hey Dude Shoes were fined $1.95 million. These funds will be used to refund customers.

Activia Yogurt Overstated Its Health Benefits

We would like to think healthy food products are being honest about the health benefits they’re touting, but that isn’t always the case. This happened to Activia Yogurt and its parent company, Dannon:

The company faced a class-action lawsuit in California, and the plaintiff alleged the company used false advertising to make unsupported health claims in their marketing, exaggerating the benefits of their yogurt.

Some of their statements include “regulate one’s digestive system” and using a false name of a probiotic bacterium (Activia used different variations of this term throughout the US, Canada, and UK).

This lawsuit also alleged that because of the false advertising statistics, the company inflated the price of their yogurt. As a result of the lawsuit, Dannon agreed to change its ad copy and drop the health claims.

Low-Level Light Therapy Device Claims It Treats Chronic Pain

Living with chronic pain is unbearable, and many patients are finding alternatives to pharmaceuticals. This caused many companies to tout non-conventional treatments to target vulnerable patients, including new technologies like low-level light therapy (LLLT).

An example is Willow Curve, an LLLT device that claimed it treated severe pain. Ever since it was developed in 2014, the marketing stated this was a “smart device” that that “clinically proven” to reduce pain and inflammation.

The FTC challenged this claim  as false advertising since it lacked scientific data to support its “clinically proven” status. In addition, Willow Curve falsely stated the FDA approved it, used deceptive native ads in their campaign, and had a bogus money-back guarantee.

The FTC imposed a $22 million judgment on Physician Technology, LLC and Willow Labs, LLC.

Sobriety Supplement Relied on Paid Endorsements and Fake Reviews

Recovering from alcohol addiction is difficult, and those wanting to enjoy a sober life may rely on products to help them curb their cravings. Unfortunately, this vulnerability can attract fraudulent companies.

Sobrenix is an example. This supplement is made by Rejuvica and targets those recovering from alcohol addiction. They used deceptive advertising to claim their supplements reduced alcohol cravings – with no evidence to back it up. In reality, the supplement is made of kudzu root and various vitamins and minerals.

Not only that, but Rejuvica promoted the supplement using paid endorsements, though the endorsements failed to address their collaborations with the brand. In addition, Rejuvica created fake review websites and the company staff members left ratings on these bogus sites (the image below is tongue-in-cheek):

As a result, Rejuvica must pay $650,000  to the FTC, which they will use to refund customers.

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Combating False Advertising Statistics

The use of misleading statistics in advertising has a significant impact on consumer trust and decision-making.

When consumers are presented with misleading information, they may make an uninformed decision, ultimately harming their health or finances. This can lead to a loss of trust in the advertising industry , and consumers may become skeptical of any advertising claims they encounter.

As consumers become more aware of data fishing and other techniques used to manipulate advertising, they are demanding more transparency and honesty from companies. This has led to the rise of several organizations that play a role in regulating advertising to provide consumers with accurate information about products.

Advertising Standards Authority (ASA)

The Advertising Standards Authority (ASA) is the UK’s independent advertising regulator across all media. Its role is to ensure that advertising is legal and only makes truthful statements. The ASA has specific guidelines  on using statistics in advertising and actively monitors ads to ensure they comply with them.

Federal Trade Commission (FTC)

The Federal Trade Commission (FTC) is the U.S.’s consumer protection agency. It can take legal action against companies that engage in deceptive practices, including using false advertising statistics.

The FTC takes a proactive approach to protecting consumers and takes action against companies that use false advertising claims.

Consumer advocacy groups often have close relationships with these regulatory bodies, which allows them to advocate for consumer rights and raise awareness of deceptive advertising practices.

You can report fraudulent product claims and misleading online and print ads to:

• The FTC at ReportFraud.ftc.gov
• Or to your state attorney general ‘s consumer protection site

Independent Product Reviews

Independent product reviews are conducted by impartial experts or everyday consumers who test and evaluate products based on various criteria such as performance, quality, durability, and value for money. These reviews offer valuable insights  into the strengths and weaknesses of products, allowing potential buyers to weigh their options objectively.

Numerous independent product review sites provide unbiased assessments and evaluations of a wide range of products, including:

• Consumer Reports :  This reputable nonprofit organization conducts extensive testing and research on various consumer products. They provide in-depth reviews, ratings, and buying guides to help consumers make informed decisions.
• Wirecutter : This site, owned by The New York Times , offers expert reviews and recommendations on various products. Their team of experienced journalists and experts thoroughly researches and tests products to provide unbiased and reliable information.
• CNET : This is a trusted technology and consumer electronics review site. They provide comprehensive reviews, ratings, and buying advice on products ranging from smartphones and laptops to home appliances and smart gadgets.
• Good Housekeeping : This popular magazine and website features independent product reviews across various categories, including home appliances, beauty products, and household items. Their experts rigorously test products to assess their performance, safety, and overall value.
• TripAdvisor : This well-known platform for travel-related reviews and recommendations allows users to share their experiences and provide feedback on hotels, restaurants, attractions, and more, helping travelers make informed choices.
• Yelp : This is a widely used platform that allows consumers to review and rate local businesses, including restaurants, retail stores, and service providers. It provides a community-driven platform where people can share their experiences and opinions.

It’s worth noting that while these sites strive to provide unbiased information, it’s always a good idea to consider multiple sources and reviews to form a well-rounded perspective.

Consumer Watchdog Groups

A consumer watchdog group is an organization or entity that actively monitors and investigates business practices, products, and services to protect consumers and ensure fair and ethical practices in the marketplace.

They scrutinize false advertising claims and practices to identify instances of misleading statistics or deceptive marketing techniques in an effort to hold companies accountable and enhance public interest.

The most common consumer watchdog groups include:

• Consumer Federation of America :  CFA is a nonprofit organization that advocates for consumer rights and protections. They conduct research, education, and advocacy campaigns on consumer issues, such as product safety, financial services, and consumer privacy.
• Public Citizen : This is a nonprofit organization that focuses on consumer advocacy and corporate accountability. They work to protect consumer interests in areas such as healthcare, product safety, and financial regulation while also promoting transparency and fair trade practices.
• Better Business Bureau :  The BBB is a nonprofit organization that acts as an intermediary between businesses and consumers. They provide ratings, reviews, and dispute resolution services to help consumers make informed choices and address complaints against businesses.

This rise in demand for transparency and the availability of independent resources has encouraged companies to be more cautious in their advertising practices. Many businesses now recognize the importance of building trust and credibility with customers by providing accurate and reliable information.

Consequently, some companies have embraced transparency  initiatives, such as disclosing their sourcing methods, manufacturing processes, or third-party certifications, to demonstrate their commitment to honesty and authenticity.

Last Word on Misleading Statistics in Advertising

Misleading statistics and false advertising are completely wrong and can have a significant impact on consumer trust and decision-making.

One of the few mistakes consumers can make when buying is not questioning ads. It is essential for consumers to be aware of these techniques to make informed decisions about the products and services they choose to buy.

By understanding the techniques used to manipulate numerical data in advertising and the role of regulatory bodies in combating this issue, consumers can help to ensure that advertising claims are accurate and not misleading.

If you’re ready to level up your business with trust and transparency, Single Grain’s paid ads experts  can help!👇

Additional content contributed by Stephanie Jensen .

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Andreas Hoepner co-leads the GreenWatch team at University College Dublin. He also heads the Data Science Hub of the EU Platform on Sustainable Finance

Nobody wants to be caught out as a liar, and no company wants to be caught out as a greenwasher. Trust matters, and a company that is found to be lying about how green it is risks losing the goodwill of its customers and its investors.

Yet greenwashing is rampant, to the point where regulators in jurisdictions including the EU, Australia and the US are cracking down. So why do companies persist? Because, it seems, they think they can get away with it and are using increasingly sophisticated means to do so.

Consider what needs to happen for a greenwashing allegation to stick. Three conditions need to be fulfilled: first, a company must make a green claim; second, someone must pay enough attention to discover that it is not entirely true or even outright false; and third, the blame for the greenwashing needs to be directed towards the company instead of a third party.

The most straightforward way for a company to avoid such unwelcome accusations would be simply not to make any green claims. But that would have big downsides: marketing teams would lose a key narrative for societal engagement; human resources teams would find it harder to recruit; and sustainability teams could find their role in business development curtailed.

An alternative strategy would be to invest lots of money and time in research and development to create products whose greenness stands up to scientific review. But, apart from being resource-intensive and slow to market, this would require companies either to produce all parts and raw materials themselves or find exclusively like-minded suppliers.

Given the business realities of the 21st century, the upshot is that, while many companies like to make green claims, they also feel pressured to cut green corners. To avoid accusations of greenwashing, therefore, they are resorting to increasingly sophisticated means that focus on the second and third conditions outlined above, with the aim of diverting attention and avoiding blame.

Building on previous work by Lucia Alessi at the European Commission’s Joint Research Centre, John Willis at sustainability researcher Planet Tracker, and their respective co-authors, I classify greenwashing according to five different mechanisms, each of which has classic and sophisticated applications. These are set out in the table below.

The oldest and simplest trick is disclosing misleading information . In the classic version, companies themselves make green claims that stretch the truth or are simply false — a petrol station, for example, may bill its fuel as “carbon-neutral” when a look at the full supply chain would reveal a big carbon footprint. 

In more sophisticated variants, companies lobby, fund or even co-found apparently independent third parties that make the desired claims via an index or ranking. Fledgling NGOs that build good reputations but face volatile funding streams are particularly at risk of being co-opted into such “greenlabelling” schemes.

Attention deflection strategies involve not lying, per se, but diverting blame or attention in a way that flatters the company’s green image. The simplest version is “greenshifting”: a polluter tries to shift the blame away from its products and on to its customers — by arguing, for example, that consumer demand is the reason it sells pet food in unrecyclable single-use sachets. This, however, has the drawback of denigrating the company’s source of income.

A more sophisticated ploy is to deflect attention from a company’s misdeeds by “greenlighting” — that is, by spotlighting a dazzlingly green product or project, no matter how small a contribution it might make to the bottom line. When passing through European airports these days, one gets the impression that more than 95 per cent of some oil companies’ marketing budgets are devoted to greenlighting their best projects, even though their capex investment budgets are barely 5 per cent green.

Attention reduction comes in absolute and peer-overshadowed forms. In both, the aim is to present information in a way that reduces the likelihood that it will face critical scrutiny.

With absolute attention reduction , a company simply gives less information for observers to latch on to. In its classic form, disclosure is limited to a few grand-sounding ambitions without any supporting data. The advanced alternative is to give plenty of disclosure items, but again with minimal details.

An example of this “ greenhushing ” would be a company that switches its sustainability reporting from a pdf format to an interactive website — and in the process drops all footnotes, supposedly for reasons to do with web design and smartphone readability.

Peer-overshadowed attention reduction may use both of the ruses just described, but it also relies on the old stratagem of hiding in a crowd — of counting on the fact that one is unlikely to be singled out, like a school of fish menaced by predators.

In its simple form, this means substandard reporting, in the expectation that any media or NGO attention will probably be focused elsewhere. A company may give copious details, for example, about carbon offsets that look impressive to a non-expert eye but fall short of best practice among industry peers. Here, the risk is that, if found out, the company will be revealed as worse than its competitors.

The more sophisticated variant, then, is to ensure that one’s peers are doing the same — perhaps by converging on the “lowest common denominator” standards established by an industry association that, like its members, wants to seem green. The more dubious those standards are, the more pernicious such “greencrowding” is. With respect to offsetting through “avoided emissions”, for instance, companies know that campaigners lack the resources to challenge more than a small number of them — and, even if they are, they can say that they are in line with industry norms.

The last, and perhaps most problematic, type of greenwashing is attention timing — that is, carefully managing when green disclosures are made. In its classic form, this simply means delaying disclosure until well past fiscal year end, which is annoying but manageable (most sustainability disclosure has been voluntary to date and lacks a statutory deadline).

The advanced approach, however, makes clever use of people’s limited attention span: by contrast with the strategies discussed so far, it consists in disclosing impressive, high-quality information — which is then deliberately given a short shelf life.

For example, a company may invite the media to report on a new, rigorous water target that wins it public praise. But, once the world’s attention has moved on, the company silently and incrementally scales back the target on its website. Many stakeholders may not regularly check the corporate website, and so may carry an inflated impression of the company for years to come. This deliberate dilution of attention-grabbing ambitions — or greenrinsing — is a particularly problematic form of greenwashing, because tackling it requires constant scrutiny of companies’ commitments.

How to combat these tricks? Apart from continuous accountability monitoring of corporate disclosures, it is paramount for regulators to establish a small set of mandatory anti-greenwashing disclosures. To avoid overburdening companies, these could be limited to about a dozen indicators such as Scope 1, 2 and 3 CO₂-equivalent emissions, emissions to water, commercial operation on protected nature reserves, and so on. 

These disclosures must be unconditional, because any clause such as “subject to materiality testing” leads straight back to co-opting third parties, along the lines set out in the discussion of misleading information above. It is all too easy for companies to encourage nominally objective but financially dependent evaluators to legitimise their commercial interests — including declaring some Scope 3 emissions, say, to be non-material. 

Greenwashing thrives on wriggle-room. The task of regulators is to ensure that companies don’t have any.

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6 misleading food label terms and what they really mean

How to understand claims like ‘no cholesterol’ and ‘gluten free’ on products

Consumer Reports has no financial relationship with any advertisers on this site.

When it comes to filling your grocery cart with the healthiest foods, careful label reading is critical. Yet even the savviest shoppers can be confused by some of the claims found on the front of food packages. And that is intentional. “If the marketing is done well, it slips through the radar of critical thinking,” says Marion Nestle, professor of nutrition and food studies at New York University. “It’s designed to make you think emotionally, and before you know it, you’ve picked up a box of junk masquerading as health food.”

Some of the terms on the front of food packages aren’t regulated by the Food and Drug Administration, which oversees nutrition and health labels and claims . “Manufacturers use colorful images, product names and claims that give the food a ‘health halo,’” says Amy Keating, a Consumer Reports nutritionist. “In some cases, the claims are factually true but still can be quite misleading.” Here are some claims experts say to ignore:

No cholesterol

Cholesterol is found only in animal products. Seeing “no cholesterol” on a plant-based food (like peanut butter or vegetable oil, which would never contain cholesterol) is stating the obvious, but it’s there to make you think it’s healthier than a similar product that doesn’t proclaim it.

Made with real vegetables or fruit

The ingredients listed below the Nutrition Facts panel are in order of weight, says Nestle. “The first few are the only ones that really count, and if the ingredient is below the first five, there’s probably not much of it in the product.”

For example, the packaging for Simply Lay’s Veggie Poppables states they are “made with real veggies,” but the only “vegetables” in them are spinach and tomato powders — listed 10th and 11th in the ingredients list. Welch’s Fruit Snacks correctly state that “fruit is our 1st ingredient,” but second and third in line are corn syrup and sugar, effectively negating any real benefits from the fruit.

Lightly sweet

This suggests that a product would have very little sugar, but that’s not always the case. For example, a cup of Morning Summit cereal, labeled “lightly sweetened,” has 14 grams of added sugars. (The American Heart Association recommends no more than 36 grams of added sugar a day for men and 25 grams for women.) And “slightly sweet” Gold Peak iced tea has 16 grams of added sugars in 12 ounces. The terms that the FDA has definitions for are “sugar free” (contains less than 0.5 grams sugars), “reduced sugar” (contains at least 25 percent less sugar than a comparable product), and “no added sugars” (no sugar or sugar-containing ingredient is added to the food).

Ketogenic foods contain little or no carbs or added sugars, but that doesn’t automatically make them healthy. “Cereals, bars or cookies that say ‘keto’ on the package are often ultra-processed, a category of foods that are made with industrial ingredients,” says Nestle, such as isolated proteins and sugar alcohols. The latter don’t have calories or raise blood sugar, but “they are manufactured sweeteners, and questions have been raised about how safe they are,” she says.

Gluten free

Unless you have celiac disease or a gluten sensitivity, there’s no health reason to avoid gluten. In fact, some gluten-free versions of breads, pasta and tortillas can be a less healthy choice. They may be lower in fiber than whole-grain products (Toufayan Bakeries Gluten Free Tortilla Wraps, for example, have zero grams of fiber) and can contain gums and other additives that push them into the ultra-processed food category.

Cured deli meats and hot dogs are preserved with synthetic nitrates and nitrites, which research has found may raise the risk of some cancers. But all “uncured” means is that the meat is preserved with celery seed powder or another natural source of nitrates and nitrites. “Uncured meats aren’t better for you,” Keating says, “because synthetic and natural nitrates and nitrites have the same effects on the body.”

Copyright 2024, Consumer Reports Inc.

Consumer Reports is an independent, nonprofit organization that works side by side with consumers to create a fairer, safer and healthier world. CR does not endorse products or services, and does not accept advertising. Read more at ConsumerReports.org .

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18 false advertising scandals that cost some brands millions

Vw falsely advertised environmentally friendly diesel cars..

On March 29 this year, the Federal Trade Commission (FTC) filed a lawsuit against Volkswagen , which claimed that the car company had deceived customers with the advertising campaign it used to promote its supposedly "Clean Diesel" vehicles, according to a press release .

In 2015, it was exposed that VW had been cheating emissions tests on its diesel cars in the US for the past seven years .

The FTC alleged that "Volkswagen deceived consumers by selling or leasing more than 550,000 diesel cars based on false claims that the cars were low-emission, environmentally friendly."

On top of potential fines for false advertising, the company could have to pay out up to $61 billion for violating the Clean Air Act, according to Wired .

On March 29 this year, the Federal Trade Commission (FTC) filed a lawsuit against Volkswagen , which claimed that the car company had deceived customers with the advertising campaign it used to promote its supposedly Clean Diesel vehicles, according to a press release .

The FTC alleged that Volkswagen deceived consumers by selling or leasing more than 550,000 diesel cars based on false claims that the cars were low-emission, environmentally friendly.

Activia yogurt said it had "special bacterial ingredients."

Ads for Dannon's popular Activia brand yogurt landed the company with a class action settlement of $45 million in 2010, according to ABC News . The yogurts were marketed as being "clinically" and "scientifically" proven to boost your immune system and able to help to regulate digestion.

The Activia ad campaign, fronted by actress Jamie Lee Curtis, claimed that the yogurt had special bacterial ingredients. As a result, the yogurt was sold at 30% higher prices than other similar products. However, the Cleveland judge overseeing the case said that these claims were unproven.

The lawsuit against Dannon began in 2008, when consumer Trish Wiener lodged a complaint. On top of the fine of $45 million, Dannon was ordered to remove "clinically" and "scientifically proven" from its labels, according to ABC.

Phrases similar to "clinical studies show" were deemed permissible. Dannon denied any wrongdoing and claimed it settled the lawsuit to "avoid the cost and distraction of litigation."

Ads for Dannon's popular Activia brand yogurt landed the company with a class action settlement of $45 million in 2010, according to ABC News . The yogurts were marketed as being clinically and scientifically proven to boost your immune system and able to help to regulate digestion.

The lawsuit against Dannon began in 2008, when consumer Trish Wiener lodged a complaint. On top of the fine of $45 million, Dannon was ordered to remove clinically and scientifically proven from its labels, according to ABC.

Phrases similar to clinical studies show were deemed permissible. Dannon denied any wrongdoing and claimed it settled the lawsuit to avoid the cost and distraction of litigation.

Red Bull said it could "give you wings."

Energy drinks company Red Bull was sued in 2014 for its slogan "Red Bull gives you wings." The company settled the class action case by agreeing to pay out a maximum of $13 million — including $10 to every US consumer who had bough the drink since 2002.

The tagline, which the company has used for nearly two decades, went alongside marketing claims that that the caffeinated drink could improve a consumer's concentration and reaction speed.

Beganin Caraethers was one of several consumers who brought the case against the Austrian drinks company. He said he was a regular consumer of Red Bull for 10 years, but that he had not developed "wings," or shown any signs of improved intellectual or physical abilities.

Red Bull released this statement following the settlement:

Red Bull settled the lawsuit to avoid the cost and distraction of litigation. However, Red Bull maintains that its marketing and labeling have always been truthful and accurate, and denies any and all wrongdoing or liability.

Energy drinks company Red Bull was sued in 2014 for its slogan Red Bull gives you wings. The company settled the class action case by agreeing to pay out a maximum of $13 million — including $10 to every US consumer who had bough the drink since 2002.

Beganin Caraethers was one of several consumers who brought the case against the Austrian drinks company. He said he was a regular consumer of Red Bull for 10 years, but that he had not developed wings, or shown any signs of improved intellectual or physical abilities.

Tesco was criticised for an ad in response to the horsemeat scandal, which suggested the problem affected "the whole food industry."

In 2013, UK supermarket chain Tesco was criticized after it ran a "misleading" ad campaign in the wake of its horse meat scandal, according to The Telegraph .

The supermarket had been caught selling beef contaminated with horse meat in some of its burgers and ready meals .

In an attempt to recover from the PR disaster, Tesco ran a two-page spread in national newspapers with the headline "What burgers have taught us."

In the ad, Tesco was criticized for implying that the whole meat industry was implicated in the horse meat fiasco, which was untrue. The UK advertising regulator ASA banned the campaign.

Nearly £300 million ($432 million) was wiped off the value of Tesco following the horse meat scandal, according to The Guardian .

In 2013, UK supermarket chain Tesco was criticized after it ran a misleading ad campaign in the wake of its horse meat scandal, according to The Telegraph .

In an attempt to recover from the PR disaster, Tesco ran a two-page spread in national newspapers with the headline What burgers have taught us.

Kellogg said Rice Krispies could boost your immune system.

Kellogg's popular Rice Krispies cereal had a crisis in 2010 when the brand was accused of misleading consumers about the product's immunity-boosting properties, according to CNN .

The Federal Trade Commission ordered Kellogg to halt all advertising that claimed that the cereal improved a child's immunity with "25 percent Daily Value of Antioxidants and Nutrients — Vitamins A, B, C and E," stating the the claims were "dubious."

The case was settled in 2011. Kellogg agreed to pay $2.5 million to affected consumers, as well as donating $2.5 million worth of Kellogg products to charity, according to Law360 .

The Federal Trade Commission ordered Kellogg to halt all advertising that claimed that the cereal improved a child's immunity with 25 percent Daily Value of Antioxidants and Nutrients — Vitamins A, B, C and E, stating the the claims were dubious.

Later, Kellogg said Mini-Wheats could make you smarter.

In 2013, Kellogg was in even more trouble. The company agreed to pay $4 million for false advertising claims it made about Frosted Mini-Wheats. The cereal company had falsely claimed that the Mini-Wheats improved " children's attentiveness, memory and other cognitive functions ," according to Associated Press. The ad campaign claimed that the breakfast cereal could improve a child's focus by nearly 20%.

In its defense, Kellogg said that the ad campaign ran four years previously and that it had since adjusted its claims about the cereal. Kellogg also noted that it "has a long history of responsible advertising."

People who consumed the cereal during the time the ad ran (January 28, 2009 to October 1, 2009) were allowed to claim back $5 per box, with a maximum of $15 per customer , according to Associated Press.

In 2013, Kellogg was in even more trouble. The company agreed to pay $4 million for false advertising claims it made about Frosted Mini-Wheats. The cereal company had falsely claimed that the Mini-Wheats improved children's attentiveness, memory and other cognitive functions , according to Associated Press. The ad campaign claimed that the breakfast cereal could improve a child's focus by nearly 20%.

In its defense, Kellogg said that the ad campaign ran four years previously and that it had since adjusted its claims about the cereal. Kellogg also noted that it has a long history of responsible advertising.

New Balance said its shoe could help wearers burn calories.

New Balance was accused of false advertising in 2011 over a sneaker range that it claimed could help wearers burn calories, according to Reuters . Studies found that there were no health benefits from wearing the shoe.

The toning sneaker claimed to use hidden board technology and was advertised as calorie burners that activated the glutes, quads, hamstrings and calves. Plaintiffs in the lawsuit claimed to have been harmed and misled by the sneaker company.

On August 20, 2012, New Balance agreed to pay a settlement of $2.3 million, according to The Huffington Post .

Lumos Labs said Luminosity could help prevent Dementia.

In January 2016, the makers of popular brain-training app Luminosity were given a $2 million fine from the Federal Trade Commission , which said the company deceived players with "unfounded" advertising claims.

The app company made false claims about being able to help prevent Alzheimer's disease, as well as aiding players to perform better at school, the FTC found. Luminosity said in its ads that people who played the games for more than 10 minutes, three times a week would release their "full potential in every aspect of life,” according to Time.

Jessica Rich, a director at the FTC said : "“Lumosity simply did not have the science to back up its ads."

In January 2016, the makers of popular brain-training app Luminosity were given a $2 million fine from the Federal Trade Commission , which said the company deceived players with unfounded advertising claims.

The app company made false claims about being able to help prevent Alzheimer's disease, as well as aiding players to perform better at school, the FTC found. Luminosity said in its ads that people who played the games for more than 10 minutes, three times a week would release their full potential in every aspect of life,” according to Time.

Jessica Rich, a director at the FTC said : “Lumosity simply did not have the science to back up its ads.

Airborne claimed it could help ward off harmful germs.

Herbal supplement Airborne was a national hit throughout the 1990s. Marketing of the product claimed that it helped ward off harmful bacteria and germs, preventing everyday ailments like the flu and common cold.There were no studies to support Airborne's effectiveness claims that met scientific standards — so the Center for Science in the Public Interest (CSPI) got involved.

However, there were no scientific studies to support Airborne's effectiveness claims that met scientific standards — so the Center for Science in the Public Interest got involved.

The high-profile scandal ended with a huge settlement, with Airborne having to pay $23.3 million in the class-action lawsuit, and an additional $7 million settlement later, according to NPR .

Wal-Mart falsely advertised the price of Coke in New York.

Wal-Mart agreed to pay more than $66,000 in fines, after over-charging customers from 117 stores in New York for Coca-Cola. The supermarket chain had advertised a nationwide sale on the soft drink in 2014, where 12-packs would cost just $3.oo.

However, customers in New York State were charged $3.50. Wal-Mart staff allegedly lied about the reasons for the price-hike, telling customers that New York has a "sugar tax," according to Corporate Crime Reporter.

New York Attorney General Eric Schneiderman, who conducted the investigation, concluded the price violated New York State’s General Business Law 349 and 350.

However, customers in New York State were charged $3.50. Wal-Mart staff allegedly lied about the reasons for the price-hike, telling customers that New York has a sugar tax, according to Corporate Crime Reporter.

Definity eye cream re-touched a model in an anti-aging ad.

In 2009, an Olay ad for its Definity eye cream showed former model Twiggy looking wrinkle-free — and a whole lot younger than her then-60 years. It turned out the ads were retouched, according to The Guardian .

The British advertising regulator ASA banned the ad, after Liberal Democrat lawmaker Jo Swinson gathered more than 700 complaints against it. The digitally-altered spots were deemed to give a "misleading impression of the effect the product could achieve."

Olay's parent company Procter & Gamble responded that it was "routine practice to use post-production techniques to correct for lighting and other minor photographic deficiencies before publishing the final shots as part of an advertising campaign."

The British advertising regulator ASA banned the ad, after Liberal Democrat lawmaker Jo Swinson gathered more than 700 complaints against it. The digitally-altered spots were deemed to give a misleading impression of the effect the product could achieve.

Olay's parent company Procter & Gamble responded that it was routine practice to use post-production techniques to correct for lighting and other minor photographic deficiencies before publishing the final shots as part of an advertising campaign.

Hyundai and KIA over-advertised its cars' horsepower.

Hyundai agreed to pay more than $85 million in a settlement in 2004, after it overstated the horsepower of cars imported to the US, according to Consumer Affairs . The class action lawsuit was on behalf of around 840,000 people who bought the 1996 to 2002 models of the Hyundai Elentra sedans and the Tiburon sport coupes.

In 2001, the Korean Ministry of Construction and Transportation had uncovered the misrepresentation, which, for some models, overstated horsepower by 10% .

The class action lawsuit was brought in southern California in September 2002. After it was settled in 2004, Hyundai sent letters offering prepaid debit cards to affected owners. They were worth up to $225.

Extenze claimed it could extend penis length.

The maker of penis enlargement pill Extenze agreed to pay $6 million to settle a class action lawsuit in 2010, according to CBS . Extenze had claimed its pills were "scientifically proven to increase the size of a certain part of the male body" in notorious late night TV commercials .

Extenze agreed to pay $6 million to settle a false advertising class action lawsuit. CBS noted that its website was also updated to say: "These statements have not been evaluated by the Food and Drug Administration. Extenze is not intended to diagnose, treat, cure, or prevent any disease."

The maker of penis enlargement pill Extenze agreed to pay $6 million to settle a class action lawsuit in 2010, according to CBS . Extenze had claimed its pills were scientifically proven to increase the size of a certain part of the male body in notorious late night TV commercials .

Extenze agreed to pay $6 million to settle a false advertising class action lawsuit. CBS noted that its website was also updated to say: These statements have not been evaluated by the Food and Drug Administration. Extenze is not intended to diagnose, treat, cure, or prevent any disease.

Splenda said it was "made from sugar."

The Sugar Association asked for an investigation into alternative sweetener Splenda's "Made from Sugar" slogan. It complained that the tagline was misleading, and that the sweetener is nothing more than "highly processed chemical compound made in a factory," CBS reported .

In 2007, a resulting lawsuit led by the makers of rival sweetener Equal, settled against Splenda. Equal was looking for $200 million from Splenda in the settlement for unfair profits. However, the exact amount of the settlement remains confidential, according to NBC .

The Sugar Association asked for an investigation into alternative sweetener Splenda's Made from Sugar slogan. It complained that the tagline was misleading, and that the sweetener is nothing more than highly processed chemical compound made in a factory, CBS reported .

L'Oreal claimed its skincare products were "clinically proven" to "boost genes."

In 2014, cosmetics company L'Oréal was forced to admit that its Lancôme Génifique and L’Oréal Paris Youth Code skincare products were not "clinically proven" to "boost genes" and give "visibly younger skin in just seven days," as stated in its advertising.

According to the FTC, the claims were "false and unsubstantiated."

In the settlement, L'Oréal USA was banned from making claims about anti-aging, without "competent and reliable scientific evidence substantiating such claims," the FTC said. Though L'Oreal escaped a fine at the time, each future violation of this agreement will cost the company up to $16,000.

In 2014, cosmetics company L'Oréal was forced to admit that its Lancôme Génifique and L’Oréal Paris Youth Code skincare products were not clinically proven to boost genes and give visibly younger skin in just seven days, as stated in its advertising.

According to the FTC, the claims were false and unsubstantiated.

In the settlement, L'Oréal USA was banned from making claims about anti-aging, without competent and reliable scientific evidence substantiating such claims, the FTC said. Though L'Oreal escaped a fine at the time, each future violation of this agreement will cost the company up to $16,000.

Eclipse said its gum could kill germs.

Eclipse gum claimed in its ads that its new ingredient, magnolia bark extract, had germ-killing properties.

A lawsuit brought by consumers alleged that the ads were misleading, according to Businessweek . Wrigley denied wrongdoing, but was ordered to pay more than $6 million to a fund that would reimburse consumers up to $10 each for the misleading product, in 2010.

Classmates.com was accused of tricking users into paying to respond to friends, who weren't actually on the site.

Millions of people lit up when Classmates.com sent them an email saying old friends were trying to contact them, promising to rekindle old friendships and flames if subscribers upgraded to a "Gold" membership. But with the upgrade, the expected reunions never came. It turns out the social networking site used the ploy to get users to give up extra dollars. In 2008, one miffed user filed a suit alleging the "deceptive" emails were false advertising. Classmates.com eventually agreed to pay out a $9.5 million settlement —$3 for every subscriber who fell for the dirty trick — to resolve the case, according to the Business Journal .

However, the website did not learn from its mistakes and in 2015 it was given another $11 million in fines, according to Consumer Affairs .

Millions of people lit up when Classmates.com sent them an email saying old friends were trying to contact them, promising to rekindle old friendships and flames if subscribers upgraded to a Gold membership. But with the upgrade, the expected reunions never came. It turns out the social networking site used the ploy to get users to give up extra dollars. In 2008, one miffed user filed a suit alleging the deceptive emails were false advertising. Classmates.com eventually agreed to pay out a $9.5 million settlement —$3 for every subscriber who fell for the dirty trick — to resolve the case, according to the Business Journal .

A lawsuit alleged that Taco Bell was falsely advertising its beef.

In 2011, consumers raised questions about what constituted Taco Bell's "seasoned beef."

According to the lawsuit reported in AdAge , the "seasoning" used was oat filler — which means the meat isn't seasoned beef at all, according to USDA standards. The suit alleged that the franchise had been tricking its consumers into thinking its products were of a higher grade than they actually were.

Taco Bell took the opportunity to poke fun at itself, hoping to mitigate the PR disaster. The company even took out a full-page newspaper ad thanking complainants for suing. Taco Bell was vindicated and the lawsuit was withdrawn in April 2011, according to Associated Press.

In 2011, consumers raised questions about what constituted Taco Bell's seasoned beef.

According to the lawsuit reported in AdAge , the seasoning used was oat filler — which means the meat isn't seasoned beef at all, according to USDA standards. The suit alleged that the franchise had been tricking its consumers into thinking its products were of a higher grade than they actually were.

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Legal requirements for placing a veterinary medicine on the market

Placing a veterinary medicine on the market, including non-medicinal products, medicinal words and phrases, how to obtain advice, report non-compliance.

Legislation

The Veterinary Medicines Regulations 2013 (legislation.gov.uk) (VMR), as amended, set out the UK controls on veterinary medicines, including their manufacture, advertising, marketing, supply and administration.

It is the responsibility of anyone engaged in these activities to comply with the VMR.

The VMR is available on  Legislation.gov.uk .

Requirement for a Marketing Authorisation (MA)

The VMR require that any person who places a veterinary medicine on the market does so in  accordance with an MA .

It is an offence to place a veterinary medicine on the market unless that product has been granted an MA.

Definition of Veterinary Medicine

A Veterinary Medicine is legally defined as:

• any substance or combination of substances presented as having properties for treating or preventing disease in animals
• any substance or combination of substances that may be used in, or administered to, animals with a view either to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis
• any substance or combination of substances that may be used for the purpose of euthanising an animal

This means that a product may be a veterinary medicine if it is:

• medicinal by presentation; in that product information, such as  product labels or marketing material, gives the averagely well-informed person the impression that the product treats or prevents disease
• medicinal by function; in that it contains a substance that would have a medicinal effect

Medicinal by presentation

A product is medicinal by presentation if its appearance gives the averagely well informed person the impression that the product treats or prevents disease, or they gain that impression.

Principally, if a person placing a product on the market, or the manufacturer, or a connected third party, expressly indicates or recommends the product for treating or preventing disease, this would render the product as medicinal by presentation. This includes product labels, leaflets, websites and social media advertisements or oral recommendations, and any other forms of literature relating to the product issued before, during or after the sale.

UK case law has established that:

• the concept of presentation of a product must be broadly understood
• the presentation will be that of the manufacturer but is not limited to the terms or manner in which the manufacturer chooses to package, describe or classify the product
• when considering whether a product is medicinal by presentation, regard should be given to the warnings, express indications and recommendations on the packaging but they are not conclusive of the position
• the external form of the product may be relevant to establishing the manufacturer’s intention but may also be material to the impression gained by the averagely well informed person
• the method of administration is an aspect of the presentation
• if a product is not only used externally but is used internally this may be relevant to its presentation and function

A product which is medicinal by presentation must have a MA granted by the SoS before it can be placed on the market unless it is covered by Schedule 6 to the VMR  Exemptions for small pet animals .

Medicinal words and phrases

If a product claims it will treat, prevent or control a disease it is medicinal by presentation. Certain words are considered medicinal as they’re normally associated with authorised medicines. The whole presentation of the product, including the packaging, will determine whether the words used make the product appear medicinal.

For guidance on marketing non-medicinal products: Digital media checklist ( PDF , 74.8 KB , 1 page )

Diseases and adverse conditions

If a product label refers, explicitly or implicitly, to the treatment or prevention of a disease or adverse condition, or to improving the state of health of the animal treated, it is making a medicinal claim.

References to the nutritional maintenance of a healthy animal, healthy digestive system or healthy respiratory system would not normally be regarded as medicinal claims.

Complying with legal requirements - medicinal by presentation: issues of difficulty

The following is guidance on particular points of difficulty and is not a definitive account of legal requirements.

Marketing and other promotional material

Claims made by a third party, such as magazine reviews or articles published by independent analysts, will be regarded as those of the company marketing the product where evidence confirms that the third party has a connection to the marketing company via solicitation, endorsement, sponsorship or funding.

Disclaimers

Disclaimers, for example on packaging or other marketing material, are not sufficient to prevent a product from being considered medicinal by presentation.

Reference to studies

References in marketing material to studies may cause a product to be considered medicinal if the study indicates that the product, or one of its ingredients, may have a medicinal effect or purpose.

Customer testimonials

If customer testimonials are used in connection with the marketing of a product and report results containing medicinal claims, the claims will be regarded as those of the company marketing the product.

Websites and social media

Websites and social media sites, including any chat room or forum, are considered in the same way as any other form of advertising and should not make medicinal claims for products that do not hold an MA.

UK based websites advertising a non-UK authorised veterinary medicine, intended for sale and administration outside the UK, must clearly indicate that the products will not be sold to UK customers.

For guidance on what internet marketing material to check see the Medicinal words and phrases ( PDF , 103 KB , 5 pages )

False and misleading claims

The VMR do not cover any claim made for an unauthorised veterinary medicine that is thought to be misleading or false but does not imply a medicinal effect.

False or misleading advertising claims about a product that is not a veterinary medicine are dealt with by local Trading Standards Officers.

Product form

The form in which a product is presented and the instructions for administration will be considered when deciding if a product is medicinal by presentation. For example, a vitamin supplement administered by injection may be considered to be medicinal by the nature of its presentation.

Packaging presentation

The appearance and design of packaging and its similarity to that of authorised medicines will be considered when deciding if a product is medicinal by presentation.

Medicinal by function

A product is medicinal by function if it is used or administered to animals with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action or making a medical diagnosis. Risk to health is a factor that must be taken into account when classifying a product as medicinal by function.

A product which is medicinal by function must have an MA granted by the SoS before it can be placed on the market. This requirement does not apply to products marketed under Schedule 6 to the VMR.

Specific topics

Feeding stuffs intended for particular nutritional purposes.

The Animal Feed (England) Regulations are enforced by local Trading Standards Officers.

Your local office (contact your local council for details) will be able to provide individual advice on these Regulations.

The Animal Feed (England) Regulations apply in England only, separate but parallel legislation is in force in Scotland, Wales and Northern Ireland.

Nutraceuticals

A nutraceutical product is a food or naturally occurring food supplement marketed as having a beneficial effect on health and is treated like any other product. They require an MA if medicinal claims are made or if they contain certain ingredients that exert a pharmacological effect on the target animal.

Biocides, insecticides and repellents

The following require an MA:

• a veterinary product administered to an animal, which contains a substance that kill insects or external parasites, such as pyrethrins, pyrethroids or organophosphate compounds, as they are medicinal by function
• a veterinary product claiming to have, or which has, the function of, control of internal parasites
• a veterinary product administered to an animal, claiming to treat or prevent a disease caused by a viral, bacterial or fungal infection

The following do not require an MA:

• a product containing a repellent, such as diethyltoluamide or ethylhexanediol, provided they claim only to repel external insects
• a product applied only to housing or bedding
• a topical disinfectant applied to intact skin provided they do not claim to treat or prevent disease

The marketing of these products are covered by legislation on biocides. For further information refer to the  Chemicals Regulation Directorate , email  [email protected] or [email protected] .

A shampoo for animals will be considered medicinal if it contains an insecticide or an ingredient which has a pharmacological effect or is presented as an insecticidal shampoo. Reference to skin conditions such as seborrhoea and dermatitis are medicinal and should not be made in connection with an unauthorised shampoo.

Cosmetic products

Cosmetic products for animals are subject to the general definition of veterinary medicines. Products that do not make specific medicinal claims and are used for cosmetic purposes only, such as colouring shampoos and hoof oils, are not considered to be veterinary medicines as long as they do not contain any pharmacologically active ingredients.

Teat and udder products

A product applied internally to teats and udders for the prevention of mastitis is considered to be a veterinary medicine.

A product applied topically to disinfect teats and udders and for which no medicinal claims are made, does not require an MA. These are regarded as biocidal products and dealt with by the Health and Safety Executive (HSE) under the Biocidal Products Regulations.

Disinfectants

A product labelled as a disinfectant which does not claim to treat or prevent disease does not require an MA. However, disinfectants may be regarded as biocidal products and can be dealt with by the HSE under the Biocidal Products Regulations.

Herbal products

Herbal products are treated like any other products. They require an MA if they are medicinal by presentation or function. For example, a product containing pyrethrum, pyrethrins or alkaloids, such as digoxin from Digitalis sp., would be considered medicinal by function.

Homeopathic remedies

A new homeopathic veterinary remedy placed on the market must either be registered under the  homeopathic registration scheme  or have a full MA. A homeopathic product on the market prior to 1 January 1994 may remain on the market provided no medicinal claims are made.

Diagnostic tools (testing kits)

Any substance, or combination of substances administered to animals with a view to making a medical diagnosis is a veterinary medicine and therefore requires an MA.

The withdrawal of fluid or tissue for diagnostic purposes and laboratory diagnostic tests are not considered medicinal.

Manufactured colostrum, including that from cows that have been treated to ensure the colostrum will contain particular antibodies, require an MA.

A colostrum or colostrum based product containing pure colostrum, provided that no reference is made to disease, immunoglobulin, antibodies, IgA, IgG or immunity, does not require an MA.

Products excluded from the scope of the Regulations

The VMR do not apply to:

• a veterinary medicinal product based on radio-active isotopes

a product intended for administration in the course of a procedure licensed under the Animals (Scientific Procedures) Act 1986, except that, if the animals are to be put into the human food chain, the only products that may be administered to the animals are:

• authorised veterinary medicinal products administered in accordance with their marketing authorisation; or
• products administered in accordance with an animal test certificate granted under VMR paragraph 9 of Schedule 4.

Obtaining advice

If you are in any doubt as to whether a specific product requires an MA you will be able to obtain confirmation from the VMD through a formal process. There is a fee for this procedure, the details can be found on the  Fees applied to veterinary medicine authorisation applications in GB .

It is not mandatory to seek formal confirmation of a product’s status before it is placed on the UK market. However, should a product be placed on the market without an MA and it is deemed to be a veterinary medicine, enforcement action will be taken which could result in the product being seized without compensation.

How to apply

Each  Advice application form  (ODT, 46.1KB) should be signed by the applicant or in the case of a corporate body by a proper officer and be accompanied by the supporting information referred to in the application form. Applications should be emailed to:  [email protected]  

All relevant information submitted in support of such applications is treated as commercially confidential.

Each application will be acknowledged and validated to check that all necessary information has been supplied within 14 calendar days of receipt.

The application will be considered by us once it has passed validation. You will be informed within 30 calendar days whether an MA is required, or you will be asked to provide further information. You will receive written confirmation of this.

This decision is only valid based on the documentation submitted as part of the application. Small changes to any of the information provided could invalidate the decision.

On receipt of a valid application, the VMD will send an invoice to the applicant for each product listed in the application.

The fee is £885.

Reporting non-compliance

Use our online reporting forms to:

• report any suspected breach of the VMR
• Report an animal product that is marketed as a medicine

The VMD’s Enforcement Section coordinates reports of suspected breaches of the VMR. The information and intelligence we receive is analysed and may be shared with our enforcement partners with the aim of protecting public health, animal health and the environment, and to promote animal welfare by assuring the safety, quality and efficacy of veterinary medicines.

Anonymous reporting

You can submit an anonymous report to us through:

• the online reporting form and selecting the anonymous option
• our telephone Hotline on 01932 338 338

Please be aware that if you use this option and there is not enough information in your report, we may be limited on the action we can take regarding your concern.

We do not disclose where reports originate.

Other Legislation

If a product does not fall within the definition of a veterinary medicine care should be taken to ensure that it meets the requirements of any legislation which might be relevant, such as:

• The Food and Environment Protection Act as amended
• The Control of Pesticides Regulations as amended
• The Biocidal Products Regulations as amended
• The Animal Feed (England) Regulations as amended

Contact and further guidance

For further information regarding any of the above topics contact the Enforcement Section, [email protected]  

For information relating to authorised veterinary products see the  Product Information Database  or email your enquiry to  [email protected] .

For information on authorisation routes and how to apply for a marketing authorisation refer to the guidance; Marketing authorisations for veterinary medicines .

For information on advertising; Advertise veterinary medicines legally .

For information on the retail of veterinary medicine; Retail of veterinary medicines .

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Watch CBS News

Anti-abortion rights groups say they can reverse the abortion pill. That's fraud, some states say.

By Aimee Picchi

Edited By Alain Sherter

Updated on: May 10, 2024 / 6:50 PM EDT / CBS News

Some anti-abortion rights groups are selling a procedure called "abortion pill reversal," which they claim can help women halt medical abortions. That claim is now being challenged by state officials who allege the groups are veering into false advertising and fraud. 

Heartbeat International, an anti-abortion rights group, and 11 other anti-abortion organizations were sued Monday by New York Attorney General Letitia James, who alleged the organizations are making "false and misleading statements to advertise an unproven treatment." The complaint follows a similar lawsuit  filed by California Attorney General Rob Bonta in September.

Heartbeat has countersued, asking the courts to throw out California's lawsuit on the grounds that it infringes its First Amendment rights. It also asserts that abortion pill reversal is safe and effective.

The litigation comes at a time when the so-called abortion pill — actually a combination of two drugs — accounts for almost two-thirds of abortions in the U.S., according to the Guttmacher Institute, which researches reproductive rights. More women are turning to medication abortion, rather than surgery, partly because it allows them to seek care privately and manage the process at home. 

Meanwhile, abortion access has faced growing restrictions across much of the U.S. following the Supreme Court's 2022 decision  overturning Roe v. Wade . The high court is also currently considering a  case  that could ultimately curtail use of the abortion pill across the U.S.

In taking aim at the anti-abortion groups, New York and California are turning to state laws that prohibit deceptive business practices as well as false advertising — in effect, both are asking courts to rule on whether the clinics' advertisements for abortion pill reversal treatment amount to fraud. 

New York and California also want the courts to block Heartbeat and affiliated anti-abortion clinics from continuing to promote abortion pill reversal because they are allegedly misleading consumers. 

For its part, Heartbeat International told CBS MoneyWatch that James' lawsuit is a "clear attempt to censor speech." 

"By singling out these organizations solely because they offer an alternative to abortion, she is not only violating their rights but also denying women access to care and support as they seek to try and continue their pregnancies," Heartbeat said in an email. 

What is "abortion pill reversal"?

Medication abortion involves taking two pills: mifepristone, which was approved by the Food and Drug Administration in 2000, and misoprostol. To begin the process, a woman first takes mifepristone, which stops the pregnancy from growing. (The Supreme Court's case involving the abortion pill is focused on mifepristone.)

About 24 to 48 hours after that, the woman takes misoprostol, which causes the uterus to contract and abort the fetus.

As this process has become the most common abortion treatment, anti-abortion clinics have turned to promoting a technique they claim can "reverse" the effect of the abortion pill. But that claim is misleading because it implies the treatment can undo an abortion, James alleges.

The anti-abortion clinics "imply the impossible — that fetal tissue that has been expelled from the uterus due to a completed abortion can be returned to the uterus. It cannot," the New York lawsuit alleges. 

In reality, the treatment is aimed at halting the medication abortion process midway by giving a woman a high dose of the hormone progesterone after she's taken the first pill but before she's ingested the second — at that point, an abortion hasn't yet occurred.

Heartbeat International told CBS MoneyWatch the treatment has "saved" 5,000 babies of women who have sought to halt a medication abortion. It added that the cost of the treatment varies on the dose of progesterone used in the process. The group also vowed to "continue to offer support to those who seek it."

Is abortion pill reversal safe?

Heartbeat's website  about abortion pill reversal claims the process is effective and says it "increases the chances" of a pregnancy continuing. The site also contends that the treatment can save 64% to 68% of pregnancies, although it only cites "initial studies" for the statistic, without identifying the specific research. 

According to James' suit, however, "no competent and reliable scientific evidence exists to substantiate these claimed success rates." As a result, the complaint alleges such claims may mislead consumers about the treatment's efficacy. 

The lawsuit also claims that Heartbeat and other anti-abortion clinics describe the process as "proven safe and essentially risk-free," while in fact the treatment hasn't been tested in any reputable medical study.

In a response to CBS MoneyWatch, Heartbeat said the treatment "stands as a safe and effective option for women who change their minds immediately after taking the abortion pill, mifepristone." The group noted that progesterone, the hormone used in the treatment, is an FDA-approved medication that has been used "for decades to prevent miscarriage and preterm birth."

Heartbeat added that its assertions are supported by "both scientific evidence and the lived experience of women who are holding their babies in their arms today after starting a chemical abortion and experiencing a successful reversal."

However, medical experts agree that abortion pill reversal hasn't been proven safe, as the only double-blind, placebo-controlled, randomized clinical trial for the treatment had to be stopped after some women experienced "life-threatening complications like hemorrhage," said Dr. Stacy Sun, an obstetrician and gynecologist and a fellow with Physicians for Reproductive Health, a group of doctors that advocates for reproductive health.

"This dangerous, non-evidence based regimen is used to prey on people making thoughtful decisions about their bodies, families and futures," Dr. Sun told CBS MoneyWatch. "It is infantilizing and manipulative."

In its countersuit, Heartbeat said that its claims the treatment has been effective in 64% to 68% of pregnancies are based on a 2018 study by Dr. George Delgado, a family physician who created the abortion pill reversal treatment. But James' lawsuit notes that the study was based on tracking women who called the abortion pill reversal hotline and wasn't a randomized, placebo-controlled trial.

Delgado told CBS MoneyWatch there are ethical issues with creating a clinical trial using placebos given that it would deal with pregnancy and potential abortion. He compared such challenges to that of studying CPR, which he said has also never had a placebo-controlled trial. 

"If someone is going down with a heart attack, we're not going to not do CPR," he said. "We have enough evidence that CPR is effective on everyone."

But Delgado asserted that the treatment is safe, citing his 2018 study as well as some animal trials.

Meanwhile, some states — primarily those that have restricted abortion access after Roe v. Wade was overturned — "actually require misinformation about medication abortion" to be provided to women who are seeking abortions, the Guttmacher Institute said in an email.

For instance, Nebraska requires that such patients be told: "If you change your mind and want to continue your pregnancy after taking mifepristone, it may not be too late." They are then directed to Heartbeat's abortion pill reversal hotline. 

"Note that this is misinformation about medication abortion generally, and some of these states put it out in their materials" even if it isn't required by statutes or regulations, the Guttmacher Institute said.

Heartbeat in February filed a suit seeking to throw out the California case, arguing that the organization is protected by the First Amendment in providing information about abortion pill reversal. The group's complaint also argues that it is "not appropriate to litigate the merits of scientific studies in the judicial system."

Heartbeat, which doesn't itself operate any clinics but provides support to about 3,000 anti-abortion rights centers, said it "receives no kickback or other payment for referring a woman to a physician" in the network of clinics offering abortion pill reversal, according to its suit.

"With this lawsuit, [Attorney General] James is protecting Big Abortion in New York while denying women in her state the right to continue their own pregnancies," said Jor-El Godsey, president of Heartbeat International, said in the statement sent to CBS MoneyWatch.

• Abortion Pill
• Letitia James

Aimee Picchi is the associate managing editor for CBS MoneyWatch, where she covers business and personal finance. She previously worked at Bloomberg News and has written for national news outlets including USA Today and Consumer Reports.

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Temu accused of breaching EU’s DSA in bundle of consumer complaints

Consumer protection groups around the European Union have filed coordinated complaints against Temu, accusing the Chinese-owned, ultra low-cost e-commerce platform of a raft of breaches related to the bloc’s Digital Services Act (DSA). Temu launched in the region only about a year ago but recently reported blasting past 75 million monthly users.

Penalties for confirmed breaches of the EU’s online governance and marketplace safety regime can reach up to 6% of the global annual turnover of the platform’s parent. For some reference, Temu’s parent Pinduoduo reported revenues of nearly $35 billion for 2023, nearly double on the year prior; Temu was estimated to account for about 23% of that amount last year.

BEUC, the European consumer organization that represents 45 regional consumer protection groups across 31 EU countries, said Thursday it’s filed a complaint against Temu with the European Commission — calling for the EU to urgently designate it as a “very large online platform” (VLOP) under the DSA. (VLOP status would mean Temu has to comply with additional algorithmic transparency and accountability rules, including mitigating systemic risk. Other e-commerce VLOPs include Alibaba, Amazon, Booking.com, Google Shopping and Zalando.)

At the same time, 17 of the BEUC’s member organizations around the bloc have filed DSA complaints with their national consumer protection authorities — accusing Temu of breaching the regulation’s general rules, which have applied to Temu since mid-February .

The coordinated complaints allege the e-commerce giant is failing to meet a raft of DSA requirements, including trader traceability requirements, rules against manipulative design, and transparency around product recommender algorithms.

Commenting in a statement, Monique Goyens, director general at BEUC, accused the marketplace of being “rife with manipulative techniques” designed to push consumers to spend more, and claimed insufficient information about traders “frequently leav[es] consumers in the dark about who they are purchasing products from.”

“This lack of traceability prevents consumers from taking an informed decision or to know if a product complies with EU safety rules,” she added.

The consumer protection groups are also raising concerns about minor safety, pointing out the extreme price discounting and gamification features baked into Temu’s platform are likely to be attractive to children.

“Temu does not guarantee its users a safe, predictable, and trustworthy online environment as the law requires,” they argue in the complaint. “Among other things, we have strong concerns that consumers are falling prey to manipulative techniques, that Temu fails to ensure the traceability of the traders operating on its platform, or that its overall functioning remains opaque, all of which breach the Digital Services Act.”

“Ultimately, the high number of dangerous products sold on Temu by untraceable traders, through manipulative practices and opaque recommender systems, are ingredients of a toxic cocktail likely to impair minors’ privacy, safety, and security,” the groups also warn.

The coordinated complaints follow some individual actions by consumer groups concerned about the safety and legality of products for sale on Temu’s marketplace.

For example, last fall, Italian consumer group Altroconsumo ran a test of cosmetics purchased on the platform and found the vast majority failed to list (or fully list) ingredients. Earlier this year, the German consumer organisation vzbv raised concerns about misleading product reviews and price discounts displayed on the platform.

As Temu isn’t currently a designated VLOP, its oversight with the DSA’s general rules falls to competent Digital Services Coordinators in EU member states where its service operates. Ireland’s media watchdog, the Coimisiún na Meán, is in the frame as Temu opened an office in Dublin a year ago .

However, the complaint is likely to amp up pressure on the EU to designate Temu as a VLOP. A Commission spokesperson told us it’s aware of Temu recently reporting more than 75 million monthly active users (MAUs) in the EU — which is the threshold for triggering VLOP status — adding: “We are in contact with the platform in view of a possible designation in the future.”

Temu has been contacted for comment. Update: The company sent a statement, describing itself as a “newcomer” to the region and saying it’s been taking feedback from customers, regulators and consumer groups and claiming to have been adjusting how it operates to align with local expectations. The statement reveals that in the past week Temu entered into a “cease-and-desist declaration” with Germany’s vzbv. It suggests many of this authority’s concerns overlap with the BEUC’s complaint about its practices, adding that it’s committed to addressing the issues raised.

“Regarding the BEUC complaint, we take it very seriously and will study it thoroughly,” Temu also wrote. “We hope to continue our dialogue with the relevant stakeholders to improve Temu’s service for consumers. Where we identify areas for improvement, we are eager to work together to enhance our service and to rectify any shortcomings. We hold the interest of consumers at heart and strive to provide a safe and trusted service that is valued by consumers and adds significant value. We are committed to transparency and full compliance with all applicable laws and regulations.”

Last month Shein, another Chinese e-commerce giant that’s been locked in a fierce rivalry with Temu — including in relation to international market expansion — was designated by the EU as a DSA VLOP after reporting passing the 45 million MAUs threshold.

While, back in March , the EU opened its first DSA investigation on a marketplace, targeting another China-owned e-commerce platform — Alibaba’s AliExpress — which had been named a VLOP in the first wave of designations in April last year .

The Commission said then that it suspects AliExpress of breaching DSA rules in areas linked to the management and mitigation of risks; content moderation and its internal complaint handling mechanism; transparency of advertising and recommender systems; traceability of traders; and data access for researchers. The investigation — one of several the EU has opened into VLOPs since last year’s compliance deadline for these larger platforms kicked in — remains ongoing.

Shein to face EU’s strictest rules for online marketplaces

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