Do television stations have an obligation to run deceptive and misleading television advertisements simply because an advertiser is paying?  Advertising in today’s society is highly visible on all media. The average person can be exposed to hundreds of television advertisements per day. Companies invest millions of dollars in major advertising campaigns. However, as costly as advertising is to produce, it is even more costly when something goes wrong. Unlike free speech, which is protected by the First Amendment of the Constitution of the United States of America, advertising is considered "commercial speech." Therefore, advertising has specific guidelines and regulations that can carry steep penalties if violated. False advertising is, in essence, exactly what the name implies: the passing off of goods or services as something they are not. It is the usurpation of good will and sales by unfair means. False advertising is prohibited and actionable under federal law and by various state statutes which prohibit deceptive trade practices and unfair competition. The Federal Trade Commission, and state attorney general have the power to bring suit to stop false advertising.


False advertising or deceptive advertising is the use of false or misleading statements in advertising that has the potential to persuade people into commercial transactions that they might otherwise avoid. "Truth in advertising" refers to essentially the same concept, that customers have the right to know what product or service they are buying, and that all necessary information should be told to the consumer so that they can make an informed decision. False advertising is illegal, however, advertisers still find ways to deceive consumers in ways that are legal, or technically illegal but unenforceable, such as providing a disclaimer in minuscule fine print, or a verbal disclaimer which makes their advertisement technically legal. Advertising is regulated by the authority of the Federal Trade Commission, a United States administrative agency, to prohibit "unfair and deceptive acts or practices in commerce. All commercial acts may be deceptive, not just advertising, however, noncommercial activity such as advertising for political candidates is not subject to prosecution under the FTC Act. The 50 states have similar statutes, which generally are very similar to that of the FTC and in many cases copied so closely that they are known as "Little FTC Acts." While the terms "false" and "deceptive" are essentially the same for most, being deceptive is not the same as producing deception. What is illegal is the potential to deceive, which is interpreted to occur when consumers see the advertising to be stating to them, explicitly or implicitly, a claim that they may not realize is false and material. The latter means that the claim, if relied on for making a purchasing decision, is likely to be harmful by adversely affecting that decision. If an ad is implicitly false, evidence must be obtained for what consumers saw the ad saying, and for the materiality of that, and for the true facts about the advertised product or service, but no evidence is required that actual deception occurred, or that reliance occurred, or that the advertiser intended to deceive or knew that the claim was false. The goal is prevention rather than punishment, reflecting the purpose of civil law in setting things right rather than that of criminal law. The typical sanction is to order the advertiser to stop its illegal acts, or to include disclosure of additional information that serves to avoid the chance of deception. Corrective advertising may be mandated, but there are no fines or prison time except for the infrequent instances when an advertiser refuses to stop despite being ordered to do so. The actual statute defines false advertising as a "means of advertisement other than labeling, which is misleading in a material respect; and in determining whether an advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.

If you see false or deceptive advertising, you can report it to the Office of the Attorney General in Florida, they pursue claims of false and depceptive advertising and there is no recourse against a consumer for filing a complaint.  Here is a link to the Florida Attorney Generals Consumer web site.

For more information or for a free consultation, contact The Law Offices of Charles D. Scott, PLLC Injury and Family Law Attorneys, by calling 727-300-4878 or view our web site

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