Federal Law Lets ‘Vicarious Avenger’ Right the Wrongs of Misleading Ads

Published in the Richmond Times-Dispatch
June 17, 2002

Canadian humorist and political commentator Steven Leacock once observed that “Advertising may be described as the science of arresting the human intelligence long enough to get money from it.”

Consider these examples:

Tropicana once aired a commercial showing Olympic athlete Bruce Jenner squeezing juice from an orange into a carton while touting Tropicana orange juice as “pure pasteurized juice as it comes from the orange.”

While it gets hot in Florida, it doesn’t get hot enough to pasteurize juice (heating it to about 200 degrees Fahrenheit) while it’s still in the orange. Tropicana was forced to withdraw the commercial.

A company called Breathassure marketed a product of the same name, claiming the product “worked with your digestive system” and “gets rid of bad breath for hours.”

Breathassure later conceded that its product didn’t stop bad breath and that it was no more effective than drinking water.

Johnson & Johnson-Merck Consumer Pharmaceuticals advertised that one of its antacid products, Mylanta Nighttime Strength, was “made just for” nighttime heartburn. Yet J&J had no evidence that this product was any more effective at night than during the day. J&J had to stop using the name.

These advertisements have more in common than just being unsubstantiated claims. The Vicarious Avenger stopped all of them.

Avenger helps consumers

The Vicarious Avenger is a powerful fighter against false or misleading advertisements.

Under our federal Lanham Act, a company has the power to obtain an injunction stopping false advertisements by competitors and to recover money damages for the harm caused.

Unfortunately, this act does not permit consumers to use it when they have been victims of false advertisements.

Instead, the act makes it relatively easy for competitors to get injunctions stopping such false ads.

Courts have excused such offended competitors from having to carry many of the burdens plaintiffs usually carry. They do so because the courts characterize such suing competitors as “vicarious avengers” acting not only out of self-interest, but also on behalf of consumers.

For example, if a wounded competitor proves that an ad’s claim is literally false, generally the court will presume that the falsity misleads consumers and causes harm to competitors, and will issue an injunction stopping the ad. For example, Warner-Lambert, the maker of Certs, stopped the Breathassure ads.

In fact, in the case over Mylanta Nighttime Strength (decided just last month), a federal appeals court held that if the plaintiff has no research to back up its advertising claim, the court would presume that the advertisement is false.

What kind of false claims can a Vicarious Avenger stop? Many kinds – false claims of product attributes, false claims about the products of others and false comparisons between products.

If a competitor claims its product is better than yours, you can stop the ad by showing the advertised product isn’t better.

For example, in 1992 Castrol stopped Quaker State from running an ad in which Quaker State falsely claimed that its motor oil did a better job than Castrol’s of protecting against engine wear.

Doesn’t ban mere puffery

Also, if the advertiser claims that tests prove its product’s superiority, you can stop the ad by showing the test wasn’t reliable or didn’t produce the results advertised. Castrol also used this rule to stop Quaker State’s ads.

The law doesn’t ban mere puffery, perhaps because consumers are naturally skeptical of broad claims that a product is better, tastier or faster. The law only cares about material, specific facts that are measurable by research.

For example, when Atari sued over 3DO’s claim that its gaming system was “the most advanced home gaming system in the universe,” the court labeled the boast mere puffery and declined to stop it.

Indeed, it’s rare to see an ad that names a competitor’s product and claims superiority in a measurable way.

It catches your eye – like the advertisements Oracle has been running comparing its products’ performance and prevalence to Microsoft’s and IBM’s. Such ads are the legal equivalent of calling out your adversary for a rumble in the alley.

Ultimately, though, if you have been the victim of the false ad of a competitor, you have to decide whether stopping the ad is worth investing the legal fees. You are not likely to recover your attorneys’ fees when getting just an injunction.

And to get money damages, you must meet a higher burden of proof. You must show that the plaintiff’s false ads directly caused your lost profits. You also might be able to recover the cost of running corrective advertisements or even punitive damages, but most courts will first require proof that the advertiser intended to deceive, which is hard to do.

Ultimately, dealing with such a lawsuit could cause you an upset stomach and restless nights. If only someone made a good nighttime antacid.

By John B. Farmer

© 2002 Leading-Edge Law Group, PLC. All rights reserved.