From Member Ron Urbach, Chairman, Davis & Gilbert, LLP
Here we are –2021. We are in a period of great turmoil – the deadly COVID-19 pandemic, the looming fear of vaccine shortages, and the struggling economy. On top of all this, we had the insurrection of January 6th, the second impeachment of President Trump, and an unprecedented presidential inauguration requiring a military lockdown of Washington, D.C. As one cartoon said, “Is it 2022 yet?”
When you consider all that is happening, talking about advertising law may appear a bit trivial. As we struggle to come to grips with the past four years and try to understand what it all means, advertising law presents important principles that are fundamental to our economy and the public. These principles are something that we can all agree upon, regardless whether you are red or blue or watch MSNBC or FOX. Divorced from the context of political differences and looking through the lens of products that we buy, each of us can clearly see the value of these principles.
Advertising law has many elements, but the core principle is that for there to be full and fair competition, and to ensure that consumers are protected, advertising must be truthful, non- deceptive and not misleading. What this means is that when advertising a product or service – the statements made about the product or service must not only be true and accurate, they must be supported with factual information based on science and experts.
What would happen if this were not the law and advertisers did not have to comply? Advertisers could promote their products by making false statements and deceptive claims and using misleading communications. They could present information as “facts” without any proof or support at all.
And what would this mean? If you are a business, competitor’s lies and misleading statements would steal business and gain market share. Without truthful information, prices would rise, shoddy products would be successful, and honest businesses would suffer. From a macroeconomic perspective, the economic model of free and market competition would be hurt.
What about consumers? Consumers would be making purchase decisions based on false and misleading information. They would be buying products and services that are valueless, inferior and even dangerous. Without a marketplace of truth and facts, they would be paying more money for products and buying products that don’t meet their needs.
Whether you are a Republican or a Democrat, we can all agree that having a functioning free market is important. We all want the statements made about products or services to be true and accurate. We all want to pay the lowest price possible for what we purchase. And we all want the products or services that we buy to be exactly as described and perform as advertised.
Advertising law is critical to our capitalist economic system and the protection of consumers’ health, safety and wallets. It ensures that there is truth not falsity, accurate communication not deceptive acts, and factual support based on science not fiction or misinformation.
When some say “facts don’t matter,” or “it’s fake news”, or “it’s only politics,” or “it doesn’t matter,” they are wrong. Learn the lessons of advertising law. It matters – it really does.
Facts, truth, science and proof are necessary not just for our economy to work and consumers to be safe, they are fundamental to a working democracy and the functioning of a free society. In his inauguration address, President Biden calls for us to “reject a culture in which facts themselves are manipulated and even manufactured” in order to rebuild American democracy. Attacks against these core principles lead to their weakening and causes damage to the very fabric of our country. And yes, this can even lead to insurrection.
The lessons of advertising law are that its foundational principles are equally applicable to our democracy. We as citizens must act in the same way we act as consumers – we must value truth and facts; we must reject falsity and deception; and we must rely on proof and science. There is no other way.