Legal question: why isn't this fraud?

[Liberal]

Or, if it is, why isn’t it prosecuted? Why is it so prolific?

I’m talking about the completely illegible, blurry, tiny disclaimers that appear in television ads like subliminal frames in a horror movie. Apparently, there is some law that requires these people to make these disclaimers (otherwise, why would they sully the screen with it?), but isn’t there some provision of the law that requires the disclaimer to be, I don’t know, readable?

On one frozen frame, I found fifteen lines (!) of text, white on light gray, almost transparent, and on screen for barely a full two seconds. On another, I found a tiny italicized disclaimer (italics are hard to read on a CRT), something about the FDA had not approved something or other, while a bikini clad woman distracted the eye away from it.

If advertizers are required to disclose certain things, why bother if they can get away with flashing some fuzzy squigglies that no one can interpret? It seems to me that if the disclaimers are allowed to be illegible, then whatever agency is charged with enforcing the law cannot enforce it. How does it know whether the disclaimer has been made or not? It’s there, but what does it say?

[BwanaBob]

Amen! There’s a local radio ad touting the advantages of owning a VW Jetta because there’s a new Jetta coming and the old one will become a classic, and their previous “classic” models are now worth 18x their original cost.

They go on to rave about the reasonable cost of $260/month. So you think, ah, I will own a “classic to be” for only $260 a month.

And at the end of the ad they fire out the 250 word/minute disclaimer that the price quoted is for a lease. etc.

Drives me insane. IMHO, all ad companies should be regulated by a strict law that says they can only state **facts ** and **never ** have any innuendo in their ads.

That’ll fix 'em!

[spingears]

It’s a ‘red flag’ alert to advise you that these are ‘city slickers’ out to scam you if they can.
Caveat Emptor!

[Liberal]

@spingears

It’s a ‘red flag’ alert to advise you that these are ‘city slickers’ out to scam you if they can.
Caveat Emptor!

Yeah, I pretty much understand that. But I’m reasonably certain that there is no law (remember — this is a legal question) that says “If you are a huckster, you must splash something, anything, on the screen and make it as hard to see as possible.” Rather, it probably says something to the effect that you cannot misrepresent a product, so just to be sure you don’t, let people know specifically what claims you’re not making.

At least with this text, you have the ability to highlight it and squint until you can see it, but if you couldn’t do that, and if it only appeared for a second or two, how is it that either (1) the law protects this kind of sleaziness, or (2) the law makes little or no effort to prosecute it?

[Kimstu]

Sometimes it is fraud, Lib-o mio. Consider the Australian government’s Australian Competition and Consumer Commission, which in 2000 (or 2001? I seem to be getting different versions of the story) brought a case against Target over its “fine print disclaimers” on television and print ads:

“In taking action the Commission seeks accurate advertisements, so that they provide consumers with useful and reliable information and therefore enhance competition. Advertisements that use fine print to qualify the message, will be subject to greater scrutiny and action by the Australian Competition and Consumer Commission,” ACCC Chairman Professor Allan Fels announced today. […]

For example, Target advertised 25 to 40 per cent off “every stitch of clothing” but, in small print, excluded underwear, socks, hosiery and other items it classified as accessories. In similar style television advertisements, Target also advertised 15 to 40 per cent off housewares and again used small print to exclude manchester (eg: towels, sheets, pillow cases) from the sale.

Target was ordered by the courts to publish corrective advertisements in a court-approved format and to pay litigation costs. The ACCC has taken similar action against other companies.

AFAICT Australia seems to be taking this issue more seriously, or at least more noticeably, than the US. I can’t find an example of similar legal action in the US against companies over the issue of “fine print” disclaimers. However, ConsumerVoiceUSA.com has some information that suggests some of what you’re seeing could be actionable and has been acted upon in the past:

**How prominent does a disclaimer or disclosure have to be in other kinds of ads? **
Advertisers can’t use fine print to contradict other statements in an ad or to clear up misimpressions that the ad would leave otherwise. For example, if an ad for a diet product claims “Lose 10 pounds in one week without dieting,” the fine-print statement “Diet and exercise required” is insufficient to remedy the deceptive claim in the ad. When a disclosure or disclaimer is necessary to prevent an ad from being deceptive, it must be clear and prominent enough for reasonable consumers to see it, hear it, and understand it. Although there is no hard-and-fast rule about the size of type or the length of time a disclosure must appear on TV, the FTC often has taken action when a disclaimer or disclosure is too small, flashes across the screen too quickly, is buried in other information, or is otherwise hard for consumers to understand. Most importantly, if you are concerned that a disclaimer or disclosure may be necessary to clarify a claim, evaluate your ad copy and substantiation carefully.

Your best bet is probably to contact the Federal Trade Commission and ask them what’s up with that.

[Liberal]

@Kimstu

Your best bet is probably to contact the Federal Trade Commission and ask them what’s up with that.

All right, I will. I’ll let you know what they say. (And I should have made clear that I’m interested in US law on this matter.)

[Liberal]

They’re closed. I’ll have to call back at 9:00.

[Liberal]

Okay, I spoke with a nice lady at the FTC who, understanding what I was talking about and agreeing with me that it is bothersome, said that she could not find any federal statute that applies. She agreed that it is obvious that they are at least ostensibly complying with some regulation or another, or else they wouldn’t bother to include them in their ads. She recommended that I call my state’s Consumer Protection Agency. I did, and a lady there, who wasn’t quite so nice, said that as far as she knew, it was an issue for the FTC since the commercials are airing on broadcast television, and that recommended that I call them.

[Liberal]

Incidentally, the SDMB clock is slow by about fifteen minutes.

[Kimstu]

@Liberal

Okay, I spoke with a nice lady at the FTC who, understanding what I was talking about and agreeing with me that it is bothersome, said that she could not find any federal statute that applies. She agreed that it is obvious that they are at least ostensibly complying with some regulation or another, or else they wouldn’t bother to include them in their ads. She recommended that I call my state’s Consumer Protection Agency. I did, and a lady there, who wasn’t quite so nice, said that as far as she knew, it was an issue for the FTC since the commercials are airing on broadcast television, and that recommended that I call them.

Sounds like a classic example of bureaucratic wankitude! Hope you manage to find out what can actually be done about this, and if I dig up any info on previous instances of the FTC “taking action” in such cases, I’ll come back with it. I hate those little finger-crossing fine-print “disclaimers” too.

[Kimstu]

Well, here’s an example from November 2003 of the FTC going after the KFC fried-chicken folks for deceptive television advertising:

Can fried chicken be called health food? The Federal Trade Commission, for one, is skeptical.

The agency is investigating recent television commercials from KFC that implied its products could help consumers eat more healthfully and lose weight.

According to people familiar with the matter, the FTC sent a civil subpoena asking the chain to explain and justify the health claims in the ads. […]

One of the KFC ads under government scrutiny shows a young man doing a double take after noticing an apparently slimmed-down friend: “Is that you? Man, you look fantastic! What the heck you been doin’?” Through a mouthful of the colonel’s finest, the friend answers, “Eatin’ chicken.” An announcer chimes in, bragging about the 11 grams of carbohydrate and 40 grams of protein in one KFC Original Recipe chicken breast. “So if you’re watching carbs and going high-protein, go KFC!” […]

In both ads, small white print at the bottom of the screen flashes the message that “a balanced diet and exercise are necessary for good health.” Later, in the ad with the two men, the small-print message notes that KFC is “not a low fat, low sodium, low cholesterol food” and that a 12-piece bucket contains legs, thighs and wings, as well as breasts. In the other spot, which emphasizes fat more, the fine print notes only that KFC is “not a low sodium, low cholesterol food,” leaving out the fat. […]

The FTC will likely explore whether the overall message could have misled consumers, partly because KFC’s disclaimers were small and hard to read. Typically, the agency judges whether the ad’s “net impression” with consumers is accurate and complete.

Emphasis added. I’m getting a vague impression that the thing the FTC cracks down on is misleading or deceptive advertising. In other words, the size or legibility of the disclaimers may not matter if the rest of the ad isn’t making deceptive claims that the illegible disclaimers don’t succeed in correcting. This may be why the nice lady at the FTC gave you the BureauShrug: there may not be any specific requirements for ad disclaimers in general, just that the ad as a whole can’t be misleading. In other words, if the ads you’re complaining about aren’t noticeably deceitful, there may not be anything you can do about the “fine print” issue. Maybe.

[ralph124c]

Yes, I know this stuff is sold as “food supplements” and carry the disclaimer “not intended to treat or cure any disease”.
So how on earth can you sell this crap? Shouldn’t all of these snake-oil medicines carry a big black notice on the container? Something like:
“This substance has not been proven to be of any medical value. Warning: Failure to seek competent medical advice may result in illness, serious injury, or death!”

[Gfactor]

The disclaimers you speak of are required by some FDA regulations.

http://www.cfsan.fda.gov/~dms/hclaims.html

Basically, as long as the advertiser says that the FDA hasn’t checked the claims out and that the "product is not intended to “diagnose, treat, cure or prevent any disease,” they won’t be chased by the FDA.

[Kimstu]

ralph: *So how on earth can you sell this crap? *

A real eye-opener on this subject is a 2004 New Yorker article by Michael Specter, “Miracle in a Bottle”:

Since 1994, when Congress passed a law that deregulated the supplement industry and opened it to a flood of new products, the use of largely unproved herbal remedies—from blueberry extract for impaired vision to saw palmetto for the treatment of enlarged prostates and echinacea to prevent colds—has increased as rapidly as the use of any commonly prescribed drug.

Since that legislation, the Dietary Supplement Health and Education Act, became law, companies have been able to say nearly anything they want about the potential health benefits of what they sell. As long as they don’t blatantly lie or claim to have a cure for a specific disease, such as cancer, diabetes, or aids, they can assert—without providing evidence—that a product is designed to support a healthy heart (CardiAll, for example), protect cells from damage (Liverite), or improve the function of a compromised immune system (Resist). There are almost no standards that regulate how the pills are made, and they receive almost no scrutiny once they are, so consumers never truly know what they are getting. Companies are not required to prove that products are effective, or even safe, before they are put on the market. […]

One recent Harris poll found that most people believe that if a supplement is on the market it must have been approved by some government agency (not true); that manufacturers are prohibited from making claims for their products unless they have provided data to back those claims up (no such laws exist); and that companies are required to include warnings about potential risks and side effects (they aren’t). […]

The Federal Trade Commission—not the F.D.A.—regulates supplement advertising. But the F.T.C. is principally concerned with commerce, not science: it focusses on the content of the labels, not the content of the pills. Although since 1994 the agency has sued more than a hundred diet-pill companies, in 2002 it found that at least half of all weight-loss ads contained false or misleading statements. […]

A tiny asterisk appeared on every product—including Zantrex-3—that suggested a connection between its contents and better health: “This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease.” If a product whose label promotes it as contributing to “wellness” is not intended to cure, treat, diagnose, or even prevent any health problem, what, one has to wonder, is it supposed to do? But there they all are, dozens of brands […]

This year, Congress will consider a bill that would modify the 1994 law so that thousands of unregulated botanical substances would be treated more like drugs than like foods. Supplement manufacturers—and their customers—are preparing to fight any such change with every resource they can muster.

Dunno what bill that was or what ever happened to it. I think we’re wandering a bit from the OT of illegible disclaimers in television ads, though.

[F.U.Shakespeare]

I don’t think ads should be allowed to lie outright, but I tend to regard any advertising as an attempt to fool or sway me.

The split-second, fine-print thing always bugged me, but I presume TV and radio advertisers can always claim that they expect you to have the capability to record it and play it back (and, with TV, pause it).

[Gfactor]

@F. U. Shakespeare

I don’t think ads should be allowed to lie outright, but I tend to regard any advertising as an attempt to fool or sway me.

The split-second, fine-print thing always bugged me, but I presume TV and radio advertisers can always claim that they expect you to have the capability to record it and play it back (and, with TV, pause it).

More likely, they’ll claim that they gave the disclaimer, and that’s all the law required.

[Hyperelastic]

I always take fine print or those “fast voice” disclaimers in radio ads as prima facie evidence that the advertiser has something to hide.

It reminds me of that Simpsons episode where the Malibu Stacy guy says something like, “This special limited edition Malibu Stacy is one hundred percent guaranteed to skyrocket in value. Not a guarantee.”