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.