If you live or work or watch TV in a major television market in Southern California such as San Diego, Los Angeles, Santa Barbara, Palm Springs, Indio, El Centro, or Orange County, CA, (which sees Los Angeles stations) or live elsewhere in cities such as Santa Ana, Long Beach, Anaheim, Riverside, Irvine, San Bernardino, Fontana, Newport Beach, Corona del Mar, Moreno Valley, Garden Grove, Corona, Victorville, El Cajon, Chula Vista or Hesperia, you will probably see at least a couple of commercials on television tonight that appear to be deceptive advertisements with claims that you suspect simply can’t be true.
As a business lawyer in California and a CA advertising and marketing attorney, it is difficult sometimes to keep an advertising client on the straight and narrow path, especially when they see ads on the television on a daily basis advertising products that can’t possibly do what they claim to do. This fictional conversation illustrates the problem.
“But just last night an advertisement claimed that drinking a certain product was proven to reduce unwanted fat,” a client argued. “Can’t I say that my garage is my clinic and I’ve proven this pill will cure all of your medical problems?”
“You can’t do it,” I said. “Deceptive advertising is illegal. No one is going to equate your garage with a medical clinic. And if that diet pill you saw advertised only caused overweight rats to loose weight when they stopped feeding them anything else, they could have a problem.”
“What about the diet drugs and drinks then?” the client asked.
“If the ads are untrue, the FCC may very well prosecute,” I said. “What no one knows is how overworked the FCC may be and how many of their prosecutors already have their hands full.”
“So maybe it takes them a few years to prosecute,” the client said. “That could be after the company makes tens of millions of dollars.”
“That’s true” I said. “But if the FCC does catch up with a deceptive advertiser, they will look at how much they made with their deceptive advertising and increase the amount of their fine accordingly. Unfortunately, unscrupulous advertisers may try to hide a portion of their profits from the investigators and in the end, if they take that risk and don’t get caught, their enterprise may still be lucrative.”
“But I want to tell the world how my one pill will solve all their medical problems,” my client said.
“Is it clinically proven?” I asked.
My client suddenly had taken a vow of silence.
“The FCC won’t be your only problem,” I said. “You can still face individual law suits, investigations by state governmental agencies, class action lawsuits, and if you have any money left, you will likely be forced to agree to never advertise such a product again.”
“What if I just write a book that tells people about my cure, without selling the cure,” the client asked.
“If you advertise the book and the cure as being legitimate and those ads are deceptive,” I said, “same result.”
My client was scowling and even though I have no clinically proven ability to do so, I could read his mind. He was thinking he needed a different lawyer. One that would find a way for him to advertise his pills to cure every medical problem known to mankind and a few others not yet realized.
“Do you know how many products are on television with spokesmen claiming they do things they can’t possibly do?” my client asked.
“Sure,” I said. “Eighteen thousand four hundred and twenty-six.”
My client laughed.
“Do you know how many lawyers are looking for their next great big class action lawsuit when your pill is sold to millions of people who then claim that it did nothing for them or worse, that it made them sick?”
“Probably more than eighteen thousand four hundred and twenty-six,” my client answered.
“You’ve got that right,” I said.”Look, go back into your lab or your garage and try to actually develop something that actually does cure a disease, stop hair loss, or even one that you can prove causes unwanted fat to just melt away,” I said. “But get documentary evidence from another lab that supports your claims and we’ll talk about getting a patent.”
My client was growling as he left but at least the FCC wasn’t on his tail. I looked at the pill he had left on my desk and wondered if I should take it.
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