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Let's say that a company is selling a moisturizing cream with the "stuffase-free" marketing argument on its face label.

The cream indeed doesn't contains stuffase, but the label is implicitly implying that:

  • other creams may contain stuffase (which is false in most cases)
  • stuffase is bad for your health (which is either false or true but irrelevant since it is not found anywhere)

This question applies for following variations:

  • stuffase doesn't even exist,
  • stuffase exists but its effect on health is currently unknown,
  • stuffase exists but is thought to be safe for most humans' health

Since nothing is explicitely false in this speech, I'm wondering, is it illegal somewhere (World/Europe/France/US)?

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In the Netherlands, this qualifies as a deceptive trade practice (misleidende handelspraktijk) and is therefore directly illegal.

It's likely also an unfair trade practice, (oneerlijke handelspraktijk) as the claim appears intended for end consumers. This means that the seller cannot count on the consumer knowing anythong about stuffase.

It is a dutch implementation of EU directive 2005/29/EG, so similar laws apply in other EU countries. But the illegal per se part might vary.

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  • The is no deception. The product is advertised as not containing an ingredient. That statement is completely and invariably truthful insofar as such ingredient does not even exist (per 1st bullet point), or says nothing about its presence in competitors' products. That rules out the only two possible scenarios whereby deception may reasonably arise: that (1) the product does contain the ingredient, and (2) the advertisement falsely conveys that competitors' products contain it. Being intended for end consumers does not alter the truthfulness --and hence the legality-- of that advertisement. – Iñaki Viggers Aug 21 '19 at 10:08
  • This would also be true under the law of many states. @IñakiViggers "deceptive trade practice" is a term of art that means a legislatively defined form of commercial conduct that is not simple fraud or an actual misstatement but has the practical effect of misleading or confusing prospective customers in the opinion of the legislature or regulator (see also, e.g., offering a one day only sale at which you expect demand will be great when you have only five items available to sell and do not expressly disclose that "supplies are limited."). – ohwilleke Aug 21 '19 at 19:32
  • @ohwilleke You should give verifiable references of legislation providing that blurry stretch (especially if you are downvoting my answer). Furthermore, the example about "one day sale & limited supplies" is totally unrelated to the OP's question. By contrast, the OP's hypotheticals comply with statutes such as MCL 445.903(1)(e), (f), (s), and (bb), the specificity of which precludes speculating about the legislative intent (and, impliedly, about legislator's opinion). – Iñaki Viggers Aug 21 '19 at 20:24
  • @IñakiViggers Lots of states have "deceptive trade practices" laws which differ from state to state. The example I gave is of a deceptive trade practice that does not actually involve a false statement of fact. The definition of a deceptive trade practice in Colorado is Section 6-1-105, Colorado Revised Statutes. For example, (1)(j) of that section makes it a deceptive trade practice if a merchant "Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity". – ohwilleke Aug 21 '19 at 20:38
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    C.R.S. § 6-1-105(1)(nnn) contains a catchall that would probably be applicable in this case and is common in many such statutes which makes it a deceptive trade practice for a merchant to: "Either knowingly or recklessly engages in any unfair, unconscionable, deceptive, deliberately misleading, false, or fraudulent act or practice", particularly because (2) invokes a competitive context stating: "Evidence that a person has engaged in a deceptive trade practice shall be prima facie evidence of intent to injure competitors and to destroy or substantially lessen competition." – ohwilleke Aug 21 '19 at 20:41
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Is it illegal to make a truthful statement about a fictitious ingredient?

No. The label "stuffase-free" nowhere implies or insinuates that other creams contain stuffase. For it to be deceptive or misleading, the label would have to be more unequivocal. For instance, "The only cream that is stuffase-free" would be misleading if other creams are stuffase-free as well.

The link given in this comment purports that the ad could prejudice competitors' products:

The ad can imply that competitors' products do not do this because they fail to measure up to the same standards. After all, if this brand of dry cereal proclaims so loudly that it is 100% fat free while the rest are silent, that means other brands are just dripping with lard, right?

However, that opinion fails to distinguish that some speculations which might occur in the customer's mind are not sufficiently premised on the label or slogan with which the product is marketed. Thus, the ad would not be actionable as deceptive or unfairly prejudicial.

Legislations typically require a disclaimer only where the product contains harmful components or if it lacks necessary ingredients. The marketing scenario you describe fits neither of these two conditions.

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  • Under EU law, the claim "Stuffase free" must both be true and relevant. It is only relevant if other products do contain stuffase, so it is in fact a claim about competing products. – MSalters Aug 22 '19 at 22:00
  • @MSalters What if other products could contain stuffase? I mean, let's say no one makes coconut lotion, but it could be done. Then, you advertise that your lotion is coconut-free? Sounds perfectly ethical to me, so long as people actually are looking for coconut-free lotion. A situation with was even more flexible is the whole GMO-free thing for seeds to home gardeners in the USA. They don't sell GMOs to home gardeners at all, anywhere in the USA (unless it's a secret), unless you count people who illegally sell them. I'm not sure how the GMO-thing panned out in other countries. – Brōtsyorfuzthrāx Aug 22 '19 at 23:42
  • Also, it should be noted that many products that never contain gluten say gluten-free on the label. Yes, I realize that many other products that many people believe never contain gluten do sometimes contain gluten and/or are sometimes cross-contaminated by it, but that doesn't seem to be the case 100% of the time, but the label is still assuring to intelligent people who honestly want to know. – Brōtsyorfuzthrāx Aug 22 '19 at 23:44
  • @Shuleshu: relevance is not black and white. Coconut happens to be an allergen, which suddenly adds a lot of relevance. Note that the question describes stuffase in 3 hypothetical ways, none of which is that bad. – MSalters Aug 22 '19 at 23:45
  • @MSalters "It is only relevant if other products do contain stuffase, so it is in fact a claim about competing products". If at a job interview I unexpectedly say "I have no kryptonite in my pocket", in no way am I conveying that my competitors do, and it would be incorrect to conclude that thereby I am making a statement about my competitors whatsoever. The same logic applies if instead of kryptonite I mention a non-fictional item. – Iñaki Viggers Aug 23 '19 at 10:24

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