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Literally True Deception

Literally True Deception. Deceptive Ads. A statement (or omission) that is Likely to mislead A reasonable consumer About a material fact. What’s material?. FTC Analysis Likely to affect consumer choice If false, injury is likely All significant health and safety claims Other evidence

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Literally True Deception

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  1. Literally True Deception

  2. Deceptive Ads • A statement (or omission) that is • Likely to mislead • A reasonable consumer • About a material fact.

  3. What’s material? • FTC Analysis • Likely to affect consumer choice • If false, injury is likely • All significant health and safety claims • Other evidence • Cost compared to competing product • Reliable consumer survey data • Credible testimony

  4. Who’s the reasonable consumer? • General populace • Target audience • Children • Elderly • Terminally ill • Evidence • Expert testimony • Consumer data

  5. What’s misleading? • “The world’s best pizza” • Sunscreen “Contains Aloe Vera” • “3 out of 4 doctors recommend” • “Approved by the American Institute of Science”

  6. Gainesburger Dog Food, 1960s FTC found that this ad misled consumers . . . Why?

  7. AT&T vs. Verizon Wireless U.S. District Court for the Northern District of Georgia, Atlanta Div. AT&T requests a TRO against use of the “maps”

  8. AT&T Claims • Consumers interpret the maps as “no service” • 3G is not a different kind of service, it’s just faster • The total experience of the ad leaves the impression that AT&T service is “out of touch” • Mall intercept study • 53% said AT&T has no coverage in blank space • 30% in “control” agreed

  9. Verizon’s Responses • The ads are literally true. • The ads are not misleading. • AT&T’s “evidence” only addresses one ad. • AT&T’s “evidence” is not valid. • Survey not limited to Smartphone users • Questions poorly designed • Control ad inconsistently designed

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