Business marketing departments advertise today with such shading of the truth it’s like they feel they have a right to say what they please. After all, it is “free” enterprise isn’t it?
It is almost as if corporate America has discovered a new Constitutional provision located in the list of the other sacred rights in the First Amendment. If religion and politics are free to sell their wares making all kinds of crazy promises, why can’t companies?
In fact, there is a provision in the Constitution that applies to what businesses can and can’t get away with in advertising. It is the “contract clause,” (Article I, Section 10) But this provision is called “freedom of contract” not because businesses can do whatever they want, but because the seller and the buyer have freedom from government interference as long as they are truthful with each other and honor their obligations.
For example, the seller must not engage in deceptive pricing, deceptive comparisons, misleading/untrue claims or depictions, and competitor disparagement, and must make truthful disclosures about things like research, labeling, and guarantees. One particularly bad practice is using these kinds of tactics to take advantage of the poorly educated or incapacitated—the biblical concern of “afflicting” the poor, widows, and fatherless.
If companies aren’t clear about what they are promising (in federal law, “the nature, characteristics, qualities, or geographic origin of goods, services or commercial activities”) or they are promising more than what they can deliver, they are outside the law and it is false advertising.
One little trick corporate America uses is to sell products is to offer little to no comparative information when they make an exaggerated claim. They say, we offer “more.” Well, more than who? More than what? Or, we charge “less.” But less than who or what? The company may offer more than some and have a price point lower than some, but more or lower than all?
Another common ploy is stating that such and such product/service is only available here at our company. How can a company get away with that when there are typically many other similar products or services on the market?
Advertisers today have consumers so buffaloed that they encourage folks to buy without knowing the price. One bath remodel company says, “You can have it for easy payments of $99/month.” Really, for how many months? The ad never says.
An egg company claims, “Good nutrition (from our eggs) is now more important than ever.” Really, there has been a time in the past when good nutrition wasn’t important? The Greeks were teaching the importance of good nutrition 2,500 years ago.
Another advertiser has a hero figure speak in hushed tones, as if something terribly important is secretly being communicated to the listener. What follows? Same ol’, same ‘ol hokum advertising.
Patients on a particular medication “lost up to 12 pounds.” “Up to” is pretty nebulous, as it allows the company to use data in a study, say of 125 patients, where the great majority lost 2-3 pounds, but one lucky soul lost 12 pounds, so we will use her as our example of what our product can do!
One advertiser says “This is the only medication that can treat both my ____ and my ____.” The product may not do much at all for the second diagnosis, but it allows the advertiser to claim an apparent product advantage (two benefits for the price of one).
One phone company says its product is great and can be had “starting at $20.” The product may start at $20, but where does the pricing end? Is the basic product price point so stripped down that few will ever buy it at that price and a far different product is effectively offered in its place?
A particular pharmaceutical company asks, “Want to do more for your brain?” Its product claims to do a handful of things for your brain: enhance memory, concentration, focus, accuracy, reasoning, learning. Does the science back this up? Where is the published data? It is an untrue claim if the data is not convincing. Also, how do you get more actual smarts? Is this pill a substitute for an education? Nope, it is not. But people might think it is.
Another company says, “All that stops you from being the greatest version of yourself,” is taking our asthma medication. Oh really, not an education, or becoming a parent? Going without our medication is the only thing holding you back?
A company has a TV ad that says its large collection of fabulous pots and pans can be had “not for $400, not for $300, not even for $200, but for 5 easy payments of $39.99,” which comes out actually to be $200, but who is going to do the math? Not the consumer, but the law ought to do the math for the consumer and end such pricing practices.
Due to lack of enforcement of the law, business advertising today has effectively become legalized crime.
Robert Kimball Shinkoskey is a student of economic history and writes editorial commentary from a historical perspective