Ask the expert:
How are false advertising claims proven?

In recent weeks, the FDA and FTC sent warning letters to companies selling fraudulent products claiming to treat or prevent COVID-19. We reached out to expert Dr. Stephen Nowlis to learn how the government or competitors prove false advertising. Dr. Nowlis is the August A. Busch Jr. Distinguished Professor of Marketing at Washington University in St. Louis. He has served as an expert witness on many cases involving deceptive advertising, trademarks, class actions, marketing, survey research, and consumer behavior issues.

Who typically sues a company for false advertising?

The government can bring suit to protect consumers, or another company can sue if they’re concerned fraudulent claims are affecting their business.

How do you demonstrate advertising is false?

There are two ways to demonstrate false advertising. One is to show the company is making a “literally false claim.” A company can’t make a blatantly false statement. For example, the label on a package that contains 8 oz of product can’t say 12 oz. At this point, if someone advertises their product has been proven to prevent COVID-19 and they can’t back it up – it’s a false claim. They can only make that claim if they have studies to show it.
The second way to prove false advertising is to show the company is making an “implied false claim.” For example, if the product packaging shows a crossed-out image of germs, or germs that look like Covid-19, the consumer could assume the product kills those germs. The claim isn’t made explicitly, but it could still be shown to imply something false.

How do you prove how consumers interpret these implied false claims?

We develop surveys to find out what consumers take away from the advertising. For example, I was an expert witness on a case where H&R Block sued TurboTax over an advertising campaign they were running. H&R Block alleged the ads implied H&R Block tax preparers were not trained properly. In the ad, a customer’s tax guy (allegedly an H&R Block tax preparer) is fixing a clogged pipe under the kitchen sink. “I thought you were a tax expert,” the customer says to Bob the plumber. To test the claim that the ad implied H&R Block tax preparers are not competent, surveys were conducted to identify whether this was, in fact, the message consumers were taking away from the ad.
In false advertising suits, the judge and jury not only look at the results of the survey, they scrutinize the survey itself. Surveys designed to evaluate the consumer’s understanding of a message need to be developed very carefully.

How do you develop a survey that accurately measures the impact of an advertising message?

There are a number of standards that must be followed. For example, you need to make sure the right people (generally, the people interested in the product) are answering the survey, and the questions must be properly written. The survey must meet many other standards as well.
In many cases, we use a test-control design where one group of respondents sees the advertisement, and another group of respondents sees a control advertisement. Such an approach is similar to the way pharmaceutical companies test drugs when they use placebos (control groups). This approach tests what consumers take away from an advertisement, so we can see if consumers are taking away implied false messages.

How are consumer surveys scrutinized in legal situations?

Typically, if I run a survey as an expert witness, the other side has another expert witness who often tries to criticize my survey. Thus, it is very important to design a proper survey that can withstand such scrutiny.
Our goal is to get an accurate measurement of consumer perception. We know the level of scrutiny the survey will face, so we spend an incredible amount of time and effort to ensure it’s developed appropriately. Specific survey expertise is required in order to know which aspects will be scrutinized and need to be carefully thought through. A false advertising case can be won or lost based on the quality of the consumer survey.
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