Also known as: deceptively advertise · deceptively advertised · deceptively advertising · deceptive advertisement · false advertising · misleading advertising
Written by attorneys · grounded in primary & secondary sources — see below
A tortious and sometimes criminal act of distributing an advertisement that is untrue, deceptive, or misleading. The wrong consists of a public representation about a product, service, or professional qualification that induces justifiable reliance and causes harm, whether physical injury, economic loss, or regulatory discipline.
Attorney Demetrius Douglas runs a television spot that opens with him standing before a jury box delivering a closing argument. In reality Douglas has never completed a jury trial. A client who retained Douglas after seeing the ad later learns of the fabrication and files a grievance with the state bar. The bar imposes discipline because the visual created a false impression of trial experience.
Delta Dynamics advertises its printers as costing far less than competitors while omitting that buyers must also purchase a mandatory service contract. Deanna Davenport sees the ad, buys a printer, and later discovers the hidden cost. She sues under the Lanham Act alleging the advertisement was false or misleading.
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Lexmark tells customers that only its own remanufactured cartridges work with its printers. Static Control Components, which sells compatible chips, sues alleging the statement is false and diverts sales. The court must decide whether Static Control has standing to pursue the false-advertising claim.
Two Pesos opens a chain of Mexican restaurants using a distinctive colorful decor and layout that Taco Cabana claims is confusingly similar to its own. Taco Cabana sues for trade-dress infringement, asserting that the copied appearance functions as deceptive advertising about the source of the dining experience.
Virginia prohibits pharmacists from advertising prescription-drug prices. A consumer group sues, arguing the ban keeps consumers from learning truthful price information and thereby protects higher prices. The Court must determine whether the prohibition on commercial speech is constitutional.
Rhode Island bans all advertising of liquor prices by retailers. A liquor store challenges the ban as an unconstitutional restriction on truthful commercial speech. The Court evaluates whether the total prohibition advances a substantial state interest without being more extensive than necessary.
A commercial seller that makes a public material misrepresentation about a product’s character or quality can be strictly liable for physical harm to a consumer who justifiably relies on the statement. Liability does not require proof of negligence or intent. The plaintiff must show the representation was made to the public, was false, and caused the injury through justifiable reliance.
False or misleading commercial speech receives no protection when it falls within historically recognized categories of unprotected speech such as fraud. Content-based restrictions on such speech are permissible without satisfying strict scrutiny.
A plaintiff may recover pecuniary loss caused by third parties’ refusal to deal and the reasonable costs of measures taken to counteract the disparagement, such as testing and corrective advertising. Emotional distress and general reputational harm to owners are not compensable.
…but only as concerned partisan political matters. We have long recognized the power of the Federal Trade Commission to regulate misleading advertising and labeling, see, e. g. , Jacob Siegel Co. v. FTC , 327 U. S. 608 (1946), and the National Labor Relations Board's power to regulate an employer's election-related speech on the basis…