TV's Believe it or Not!

Remember when you were little, and you saw an ad on TV, perhaps on Nickelodeon, that looked really neat and you just had to have it? Was it a pair of Moon Shoes or a stuffed dog that really walked? I will never forget when I first understood how commercials “really work.” When I was about 4, I saw this Barbie advertised, who could dance and move like no previous Barbie—she had flexible joints. I saw the girl in the ad playing with her, and then all of a sudden, Barbie danced on her own! It was the real doll dancing with no human aid! I was so psyched I talked my parents into getting her, and I took her out of the box, and she did nothing.  I tried to make her move like she did in the ad, but with no avail. I was rather disappointed. I told my parents and others from then on to never to believe what you see on TV.

I often think too deeply into commercials, though I certainly no longer believe most of them. Does Hydroxycut really work? Well, with diet and exercise, like any other weight loss routine. Does Oxyclean really remove those red wine stains in seconds? What about those “As seen on TV” gimmicks? Does Smooth Away really remove unwanted hair magically as you wipe your legs with it? Maybe yes, maybe no. But the company certainly will make a lot of money through customers trying to answer that question.

How does this all relate to the First Amendment? Given that many ads are “false” to a certain extent, that is, “results are not typical,” or “results may vary,” and no Barbie ever (except a robot Barbie) will be able to dance on her own, should these ads be protected under the First Amendment? Do they not shed their product in a false light? According to our discussion in class, in order for false light to occur, there needs to be  “(1) publicity (2) about a false statement, representation or imputation (3) understood to be of and concerning the plaintiff and (4) which places the plaintiff in a false light that would be highly offensive to a reasonable person” (Benz v. The Washington Newspaper Publishing Company, LLC, and John F. Bisney). In commercials, there is publicity and there is a false statement or representation. However, here is a gray area: while jenny Craig might help some lose 20 pounds, for others, they will not lose the weight. While Pantene Pro V might make your hair shiny, is it going to look like the model’s hair in the ad? Probably not. So, is this false light? Jenny can help weight loss. Pantene can help your hair become more shiny, but will everyone experience the same promised results? Not typically. But, because even one person might get those results, the companies are not lying. The last two qualifications are to be concerning the plaintiff, which ads do concern their companies, and portrayal in a false light that is offensive to Mr. Reasonable. Is a reasonable person going to be offended if Dove body lotion does not make their skin glimmer like in the ad? They probably will be upset, but not offended.  So it appears, commercials are protected. Or are they?

Airborne, a product I have been using since it came out got itself into a nasty lawsuit over false advertising: David Wilson v. Airborne, Inc. You can read about it here. Basically, they advertised that their product prevented and cured the common cold, when in fact, according to medical professionals, there is no cure for the common cold. Thus, Airborne does not really do what it promises. (Personally, I still believe from experience that it does help prevent colds, and help shorten their duration, but what do I know?) Americans spent millions of dollars on this product, believing it could do something it cannot. Airborne also violated several food and drug codes, by presenting false and misleading facts. In the end, according to ABC News, because Airborne had not data to back up their “cold cure” claim, they settled the class action lawsuit with a $23.3 million refund. Money will be going back to customers with valid claims who purchased Airborne between May 2001, and November 2007. Ouch.

More recently, the Federal Trade Commission is trying to change the rules of advertisements. We have seen that many of the results shown on TV are not typical of the average person using the product without Hollywood aid. According to CommercialAlert.org,  “Advertisers that feature endorsers touting dramatic results will either have to demonstrate that consumers are “likely” to have similar success or describe in the ad what the “generally expected performance” is.” Does this mean we will be seeing more “real” people in the ads, and less models and celebrities? This is a very interesting and timely regulation that is going to prove to be very difficult for advertisers. I mean, honestly, is Chuck Norris so buff solely because of his BowFlex (does he even use one at all?!)? I don’t believe this act would infringe on advertiser’s First Amendment rights. If their product really works, then they have the right to show that. If Marie Osmond has lost and excessive amount of weight with NutriSystem, but that is not the norm, not NutriSystem will be forced to tell me what the expected performance is, not the outliers.

Those cases deal with company’s own false advertising marketing ploys. But what about when a company sheds false light on another company? In October, 2007, Alltel aired a commercial that depicted a wireless customer as a caged guinea pig. Like the pig, Alltel claimed that Verizon and other companies’ customers do not have the freedom that an Alltel customer has to make changes to their plan.  This was true when the ad first aired. But after October 7, 2007, Verizon Wireless no longer extended its customers’ contracts when they made plan changes. However, even after this date, Alltel proceeded to continue to air the same commercial. Naturally, Verizon sued. You can read more about it here. This lawsuit started in January 2008, and nothing will probably come out of it as Verizon now took over Alltel. But they probably could have won, because the Alltel ad was public, was false (in some respects), concerned the plaintiff (Verizon), and was offensive to a reasonable person. If a reasonable person owned a business, and a competitor aired a false ad about him, I believe the reasonable person would be offended.

False speech is protected, there is no doubt about it, for better or for worse. I must say, I am happy that the FTC is taking baby steps toward tighter regulation of advertising. While I do not believe that advertising will ever be 100% honest, I believe that they should try to be (yes, that is the nice roses and sunshine dream world). If I needed to lose weight, I would never buy Hydroxycut, because their ad says it is not typical, and the results shown of the model do not look typical. I would not waste my money on something that only works with diet and exercise- something I can do for ‘free’ without purchasing the weight loss pills. To a point, advertisers are hurting themselves; if a four year old can be disappointed in a Barbie doll, and learn that what is seen on commercials is not always true/real, certainly adults will not believe everything they see. Like Mom always said, Honesty is the best policy.