A lot of advertising uses slogans that aren't necessarily meant to be taken literally. But now even some companies are admitting you shouldn't believe everything you seeat least in their competitors' ads. In fact, using laws designed to protect consumers from deceptive advertising, an increasing number of companies are suing each other, claiming that false advertising by a competitor is hurting their sales.
Longtime foes like AT&T and Verizon Wireless, Campbell's Soup and Progresso, Dove and Pantene, and pet-food makers Science Diet and Iams have all wrestled over ads recently. Pantene has attacked Dove's claim that its conditioner "repairs" hair better, and Iams has been challenged for saying that "No other dog food stacks up like Iams."
"In this economy, where [profit] margins are a bit tighter, a lot of marketing departments have decided to become more aggressive," says John E. Villafranco, a lawyer who specializes in advertising. What exactly are advertisers allowed to say about their products? In legal terms, advertising is considered "commercial speech"speech on behalf of a company or individual with the purpose of making a profitand it's treated differently than other kinds of speech.
"Commercial speech is sometimes called the stepchild of the First Amendment in that it receives some First Amendment protections but not as much as other types of speech," says David Hudson of the First Amendment Center. With a few key exceptions, such as libel and incitement to violence, almost all non-commercial speech is constitutionally protected.
"False and misleading advertising is not protected at all," Hudson adds. "That's where a lot of the court battles come into play, because there's heated disagreement as to what constitutes misleading commercial speech." Truth-in-advertising laws are designed to protect consumers by requiring advertisers to be truthful and able to back up their claims. The Federal Trade Commission is responsible for enforcing these laws. But the agency doesn't actively search for inaccuracies; it only follows up on complaints.
Can You Hear Me Now?
"We've all had a pizza delivered to us with a box that says 'world's greatest pizza,'" says Robert Thompson, a professor of media at Syracuse University in New York. "It probably isn't, but there's no way to prove that."
But when there is a way to back up a claim, companies are insisting that their competitors do so.
In December, AT&T sued Verizon Wireless over, literally, empty space, when Verizon began comparing its third-generation wireless network to AT&T's in TV commercials. AT&T isn't challenging the crux of the ad, which is that Verizon has more widespread wireless 3G coverage than AT&T. Rather, it's upset over the maps comparing the companies' networks.
"There are vast [blank] spaces . . . in the map that depicts AT&T's coverage," says Mark Siegel, a spokesman for AT&T. "It suggests to the viewer that not only is there no 3G coverage in that area, but there is no coverage at all."
U.P.S. stopped running ads saying it was the "most reliable" shipping company after FedEx sued in May, arguing that the claim was based on outdated information.
Last fall, Campbell's Soup started an ad campaign that said its Select Harvest soups were "Made with TLC," while labeling rival Progresso soups as "Made with MSG"monosodium glutamate. Progresso responded with its own campaign, and then both companies complained to the Council of Better Business Bureaus, which recommended withdrawal of some ads by both soup makers.
But Thompson, the media professor, says that though the regulations are designed to prevent bold-faced, inaccurate claims, they cannot prevent everything that's misleading. "Advertising has always been about hyperbole and illusion," he says. "That's what we signed up for as a capitalist, consumer society."
(The New York Times Upfront, Vol. 142, March 1, 2010)