Is it false advertising if an ad lies about the presentation of the ad but not about the product/service itself?

Question

I have seen several ads whose premise is bringing regular people off the street and filming their reactions to a product or deal. Often these ads will claim that "these are real reactions from regular people, not actors."

Suppose such an ad lied about the people not being actors, but everything it said about the product was objectively true. Would this constitute false advertising?

I am primarily interested in the law in the U.S., specifically Utah if the U.S. is too broad. However, I'd also be interested in hearing about other jurisdictions as well.

Answer 1

Suppose such an ad lied about the people not being actors, but everything it said about the product was objectively true. Would this constitute false advertising?

No, or at least under Utah law it is not actionable.

Garrard v. Gateway Financial Services, Inc., 207 P.3d 1227, 1229 (2009) points out that "[t]he Utah Unfair Practice Act [...] prohibits [...] advertising goods the retailer is not prepared to supply". Your premise that everything said about the product is objectively true suggests that the provider is prepared to supply the advertised product.

Because of the objectively true statements about the product, the advertisement does not contravene consumer protection policies/tenets. Other than that, Garrard at 1230 is explicit in that "[t]he Act contains no language prohibiting unfair or deceptive practices in commerce".

Answer 2

Yes

australia

This is a straight up and down case of “deceptive and misleading conduct”. There is plenty of case law to support that testimonials (which this is) must be genuine, not paid for as they are from an actor.

Further, they cannot be cherry-picked. If 5 real people reacted and 2 reacted negatively, you cannot just show the 3 who reacted positively - you have to show them all or otherwise disclose that 3 out 5 people loved the product.

When actors (or people who are otherwise getting paid) are used that fact must be disclosed if it is not clear from the context. In a typical ad where people are just shown using the product without giving a personal endorsement it’s sufficiently clear that they are actors. However, in the type of ad you describe if they were actors this would need to be stated.

Television and radio personalities must disclose when they are being paid for an endorsement under enforceable codes. Influencers are required to do so under non-binding codes, however, it is likely that breach of these codes would also be a breach of the law.

Answer 3

united-states

Yes.

Last week, the FTC issued a statement explicitly stating that the following practice, among others, is a violation of the FTC act:

misrepresenting an endorser as an actual, current, or recent user of a product

To clarify, these laws are not new. The FTC's announcement is a reminder of existing law.

Answer 4

Yes for California.

Depending on whether it’s a service, a goods or a person they promote Civ. Code § 1770 (a) (2) or (5) would apply:

“The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:

[...] (2) Misrepresenting the [...] sponsorship, approval, or certification of goods or services.

(5) Representing that goods or services have sponsorship, approval, [...] that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have.

These provisions must be construed liberally to convey consumers’ interest.