What Do I Need for a Successful False Advertising Lawsuit?

Everyone knows that advertising is biased. At the same time, you should be able to rely on advertising for reasonably accurate information about a company’s products or services. Companies offering products and services must avoid false or deceptive advertising.

Under state and federal regulations, businesses are prohibited from using outright false statements or misleading advertising. This article will give you an overview of the most important things consumers should know about false advertising. For legal help on false advertising, reach out to a consumer law attorney.

What Legally Qualifies as False Advertising?

False advertising is making a false or misleading claim in advertising or promotional material in an effort to induce consumers to purchase a product or retain services. To be liable for false advertising, a business must either have known or should have known that the statement was false.

Examples of false advertising include:

• Material misrepresentations
• Material omissions
• Hidden fees
• Bait-and-switch tactics
• Misleading comparisons

Laws Banning False Advertising

The Lanham Act is a federal law that governs trademarks, branding, and false advertising. While it’s best known for protecting trademarks, the Lanham Act also prohibits false or misleading advertising that harms a competitor’s business.

Under the Lanham Act, businesses can sue competitors who make false or deceptive statements about their products. The law protects against unfair competition, not consumer fraud. Individual consumers typically can’t bring a Lanham Act claim, but businesses and organizations can.

The Federal Trade Commission Act (FTC Act) protects consumers from deceptive, unfair, or fraudulent business practices. The Federal Trade Commission (FTC) enforces many types of consumer protection laws, including those related to advertising, marketing, labeling, and online sales. This includes false or misleading advertisements across all media platforms: print, television, radio, websites, social media, influencer marketing, email campaigns, and product packaging.

Elements of a False Advertising Claim

A plaintiff must prove several elements to have a successful false advertising claim. These elements can vary slightly depending on where the claim is brought. Generally, the elements include:

• A false or misleading claim in a commercial communication
• The claim actually deceived someone
• The deception was a material element in the person’s purchasing decision for the product or service
• Because the person bought the product or service, they suffered some form of loss or harm

State Laws on False Advertising

All U.S. states prohibit false and deceptive advertising through their consumer protection or unfair trade practices statutes. Most state laws mirror or incorporate principles from the Federal Trade Commission Act and the Lanham Act.

State laws typically prohibit false, misleading, or deceptive claims and allow for civil enforcement by the state attorney general. The attorney general has broad authority to bring legal actions designed to stop unfair and deceptive business practices.

Individual consumers can also join together and file a class action lawsuit against the business. Depending on the state, consumer protection laws may allow private citizens to take legal action. California, New York, and Massachusetts have some of the strongest consumer protection laws.

False Advertising Involves Misrepresentation of Objective Truth

It is important to emphasize the difference between unlawful false advertising and “puffery.” As long ago explained by the FTC, “puffed up statements” or “puffery” is a lawful form of advertising. The general rule is that companies can make exaggerated subjective statements, but not objectively misleading statements.

For example, a restaurant advertising its pizza as “The Best in Town” is not false advertising. It is simply a subjective opinion. In contrast, a restaurant claiming that it was named “Best Pizza Place” by the local newspaper when there was no such award is false advertising. It is an inaccurate representation of an objective fact.

How To Bring a Successful False Advertising Claim

First, you need to know where to file your false advertising claim. If you’re a business competitor, the claim would likely be under the Lanham Act, making it a federal claim. If you’re a consumer, you can file your claim with the FTC or your state.

However, the FTC only receives and reviews complaints. They can start investigations and impose sanctions, but they don’t represent individual consumers or obtain direct compensation. Filing a complaint with the FTC initiates broader regulatory protections to help prevent further harm to the public. Filing a civil lawsuit is appropriate for pursuing recovery from personal losses.

If a false advertising claim is successful, the plaintiff may be awarded monetary damages. In some states, damages only include the value of the loss suffered. In others, punitive damages are also awarded.

The court may issue injunctions to have the defendant fix their misleading advertising. The plaintiff may also recoup attorney’s fees and court costs in some states.

What Kind of Evidence Do You Need?

As with any legal claim, you will need evidence to support your claims and counter the defense’s evidence. Evidence can include copies of the misleading statements, advertisements, or marketing materials. It could also include social media posts, endorsements, or influencer collaborations.

Gather evidence that helps establish the deception. This could be with consumer perception surveys, expert analysis, or internal communications. Next, evidence needs to show that the deception caused material harm. Evidence of this could include proof of purchase, financial loss, or competitive harm.

When To Hire a Consumer Protection Lawyer

The legal process can be long and complicated. Without experienced legal representation, you risk not exercising all of your legal rights. This can lead to not receiving full compensation for damages.

A consumer protection lawyer will evaluate the viability of your claim. They can help you gather and preserve any supporting evidence. With their guidance, you can determine whether a federal or state claim is more appropriate.

After filing a claim, the lawyer can negotiate a settlement with the company or pursue the false advertising lawsuit through litigation. Class action lawsuits are common in consumer protection claims. There are lawyers who focus their practice on these types of cases.

Find Legal Help

Many consumer protection attorneys provide free consultations to learn about your case, explain your rights and options to you, and help you pursue full and fair financial compensation.

Here are some questions to ask an attorney at your initial consultation:

• What are your attorney’s fees, and how are they covered?
• What is your experience with cases involving deceptive business practices?
• What civil penalties are available for deceptive business practices or false advertising?

If you’ve suffered financial losses due to deceptive trade practices, seek legal advice from an experienced consumer law attorney.