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Q: Coke is it. True or false?

A: Wrong question.

How to make a claim about truth in advertising when ads aren't saying anything? In this explosive, once-in-a-lifetime tell-all, IVAN PRESTON explains.

Ivan Preston is a "truth in advertising" specialist at a time when "truth in advertising" sounds like a quaint idea. A professor at University of Wisconsin-Madison, he has written two books on the subject: The Great American Blow-up: Puffery in Advertising and Selling and The Tangled Web They Weave: Truth, Falsity, and Advertising.

Preston doesn’t focus on the sort of fraudulent advertising that so many consumer advocates target. Rather, he studies a far slippier terrain: that of "loophole" claims, which cannot be considered deceptive because the law says consumers don’t take them seriously. The main type of loophole claim is puffery, which is basically an opinion statement about the product:

"The best in the business" (AT&T)

"The best part of waking up is Folger’s in your cup"

"Trojan: America’s #1 condom"

According to the legal definition, puffery states no facts. Preston argues that the law is wrong. He says puffery often implies facts and often is deceptive. When Trojan says it’s America’s "number one" condom, people may think the number "one" means something. But whether or not Trojan has a solid reason to make this claim, the claim itself cannot legally be considered deceptive.

The Federal Trade Commission (FTC)–the government agency that oversees advertising–regulates against deception, not falsity, in advertising. Only a deceptive claim is illegal, regardless of whether or not it’s false. This makes sense because something can be false and not deceptive while something literally true can be deceptive. Ice cubes photographed in beverage ads may not really be ice cubes–real ones would melt under the lights–but since they don’t mislead anyone about what the product is, there’s no problem. On the other hand, the FTC once found commercials for a toy car deceptive even though they were was not technically false. The photography captured the car without special effects. But it was filmed so close to the track that the cars appeared to move at lightening-speed in a blur on the screen. Kids, suggested the ruling, would be misled about the true speed of the toy car. The FTC, then, regulates not the message sent, but the message received.

The law assumes that people don’t believe opinion claims, that they don’t perceive them as facts. Yet puffery delivers, argues Preston, otherwise advertisers wouldn’t rely on it so much. As he puts it, "Puffery is used because it works, legal because it doesn’t."

In addition to puffery, the other loophole claims are obvious falsehoods/jokes and lifestyle claims (in the books these are referred to as "psycho/social claims"). The latter are claims an ad makes about the consumer or something other than the advertised item ("The best part of waking up is Folger’s in your cup"). Even less cut and dried than puffery, lifestyle claims point out the real weakness of regulating deception rather than falsity. Where truth is an objective issue, deception is subjective: its proof is in our heads, so regulating it all is pretty impossible.

The following interview took place via email in the fall of 1997. –Carrie McLaren

This image ad for Chic jeans is unusual in that it actually puts a claim in words. [The ad reads: ""Inside my new Chic jeans I found a new self image."] While many ads convey the same basic idea, few make it explicitly.

Stay Free!: You write a lot about brands advertising product differences that aren’t real differences. But I’m not sure how you’d go about regulating that. For example, there are several brands of bottled water: the "sports" water, the "yuppie" water, the "gay" water, etc. These brands haven’t really established their identities through explicit claims but by where they chose to advertise, who they put in their ads, their overall aesthetic. Are there any restrictions you’d advocate in this case?

Ivan Preston: First of all, what concerns me is only content that makes a claim; I’m not criticizing anything else. So that means no problem for attention-getting devices, or for various ways of dramatizing to create excitement. For example, my favorite Nestea commercial showed a person beside a swimming pool. The voice-over would say, "Take the Nestea plunge," and the person would fall backwards into the pool. That’s not a claim, you see; it’s just saying, "Try it."

I think you can have quite a bit of image (or, let’s face it, bullshit) about the various brands as long as it doesn’t harm people. But if there’s a dark side, such as with PowerMaster [PowerMaster was a malt liquor that was targeted to young urban blacks and Hispanics; after community leaders protested the misleading name, it was taken off the market], then the seller will eventually have problems. Do I advocate restrictions? The answer would be "no" until you get to the point where there’s some negative aspect that really matters.

How do you determine when something makes a claim? On a certain level, ads that have pictures of beautiful people are making a claim that beautiful people use their product. They don’t have to say "beautiful people use our product and so you should use it and be like them." It’s implied in the picture. Just like all the ads that imply that using X product will get you laid. They don’t have to claim anything, they can just show a picture–hell, it can even be a blurry picture or a line drawing–and still imply that. Of course you could also take this to ridiculous extremes, be a cultural studies major and read all sorts of Freudian things about your mother and pets into ads . . .

Well, the regulators determine what a claim is by surveying consumers and asking what they got from an ad. It has to be seen as a claim by a certain proportion of consumers, somewhere in the area of 20 to 25 percent of them. As of now, the law is probably not going to see a claim of social success (being a beautiful person, getting laid) if there seems to be a great stretch between such success and what the product will literally do. For the most part, I agree with the law that such claims involve too great a stretch.

Seems to me that they’d miss a lot just by asking people what the ads mean, though; people often don’t think very critically about ads. Isn’t that’s how a lot of them work: by affecting you without your knowing it’s affecting you? I was just reading about a study where researchers showed groups of men a picture of a car with a sexy woman next to it, and a picture of the same car without the woman. Men rated the car with the woman as much faster than the one without, yet all of them denied that the woman had any effect on their perception of the car.

There are times when consumers are affected by such subtleties, but the law is not sophisticated enough to grasp that.

Yeah, and I don’t see how the law could deal with implications in lifestyle-type ads. Most lifestyle ads don’t say anything about the product. They often don’t even have any words, just images. Products like fashion, music, and fragrances are more about the subjective experience tied to the product that the product itself. Wouldn’t they be less subject to regulation?

If the ads don’t make a claim, then I have no concern with them. But a lot of such ads do make claims. As for ads with no words, pictures can certainly imply words, but it’s harder to do and less likely. For example if there’s a celebrity pictured, the celebrity’s qualities could rub off so that the consumer sees them as the advertised item’s values. But of course in some cases, as with fragrances or music, you’d be less likely to find a claim because the whole process is more subjective. Again, it depends on the ad.

Do you think ads necessarily need to imply words to make a claim? I think part of the reason it’s difficult to identify implications made through pictures is because pictures don’t readily convey words. Something in a picture may register with a person and mean something to them but because they don’t have words for it, they don’t identify or don’t express that meaning.

I stress words because the legal beagles have to put a charge of deceptiveness in writing, and in doing so they have to put what the ad implied in writing.

There’s no history of regulating against lifestyle ads in the U.S. but the Finland case against McDonald’s you mentioned was really interesting. [A court in Finland prohibited a commercial showing a boy who was sad about moving to a new home until he saw a McDonald’s there. The court said the ad "falsely leads people to believe that a Big Mac can replace friends and ease loneliness."] Have other countries had any success regulating these sorts of ads?

I don’t know of any. Some countries such as Germany are tough on puffery, but in general, all countries do it their own way.

Do you think that McDonald’s ad could be considered deceptive?

What about this Chic jeans ad [pictured] that says, "Inside my new Chic jeans I found a new self image." Tons of ads imply that but this ad comes out and states it. That doesn’t make it any more of a claim than if it were just an image, but it makes it a lot easier to distinguish as a claim.

Chic needn’t state that because, you’re right, it’s implied with the image. It could be that they did so because advertising today is showing more signs of revealing itself for what it is. The idea is that the advertisers say, "Hey, consumers know what we’re doing so why don’t we just acknowledge it and they’ll think we’re cool to do so." It’s a process that Randall Rotherberg describes in Where the Suckers Moon, a terrific book on advertising, particularly this "postmodern" advertising.

Postmodern ads may be all the rage now, but they’ve got their drawbacks. For one thing, if I were going to bullshit somebody, I don’t think I’d do it by saying, "hey, here’s some bullshit, I hope you like it." I think we’re on the verge of seeing a peak in the trend now of being postmodern or otherwise relying on sheer creativity. Ad Age recently did a story titled "Entertainment is not enough" and specifically said "[Budweiser] Frogs don’t sell beer."

But sometimes I think some people would rather have entertaining ads than just entertaining entertainment. There’s something compelling about having someone trying to persuade you. Do you think people sometimes actually want to be deceived?

The public loves the entertainment (they love the frogs) but it creates positive values for the ads themselves rather than for what they advertise. And ad values per se aren’t worth a damn unless they transfer over to the product in the consumer’s mind.

I think people do not want to be deceived about the product. If they’re happy with its features, and if they also get an image with it–even if through deception–that’s a plus. But if there’s deception about the product itself, the response will be negative.

What I mean is: there are times when I’d really like to believe that some product will solve a problem for me. For example, I go through periods of severe insomnia, and when this was first starting to happen, I would try to convince myself that, say, I was lacking a certain vitamin and by taking that vitamin, it would solve my problem. But, of course, because of the placebo effect, just believing a vitamin would solve the problem helped me sleep. I think the same thing could be said for lots of ads–for ads about improving self-image, or the Jack Daniels ad that says "get in touch with your masculine side." I think it’s possible to know that those sorts of claims are bogus, yet still want to believe them because if you think something will improve your self-image, it can. If I associate Jack Daniels with masculinity and toughness, it’ll help me feel tough, though I wouldn’t necessarily have to think to myself, "this Jack Daniels might help me feel tough," just like I didn’t articulate, "if I think this will help me sleep, it will help me sleep."

I think there’s a lot of that, but I don’t see the law being able to do anything about it. It would be much more a matter of regulating the consumer rather than the advertiser.

Exactly. That’s where I’d say education fits in. You take a pretty negative view of possibilities of consumer education. How does this compare to your views of media literacy? There’s a popular assumption among people my age that we’re media-savvy, just like there’s a popular assumption that people distrust ad claims.

Education and regulation definitely conflict, because one says you can figure things out for yourself and the other says you can’t. The way to remove the conflict is to see that either of them alone is not sufficient. Education can’t solve everything, which is what business people say to fend off regulation. My purpose at the end of Tangled Web was to increase readers’ valuation for the law, so for that reason I emphasized what education can’t do.

Much the same about distrusting ad claims. Many people are skeptical about ad claims but are much more trusting in their actions–we have to trust in order to deal with the marketplace.

Yes, and people often don’t realize when they do trust ad claims. I just read an interesting point about this in David Shenk’s Data Smog. He cites a classic argument between Descartes and Spinoza on how people perceive [see sidebar] and used it to show how we can make incredibly unsophisticated inferences when we’ve got too much to think about. We’re so overburdened, we don’t go back and question that reflex to trust. Even trivial acts like buying a toothbrush would be an ordeal if we didn't trust . . .

I’m sorta confused about where the "reasonable personal" standard fits into everything now and how reasonable you need to be to not trust a claim. Has there been any challenge to the reliance on "reasonability" as a basis for deception? Something Stuart Ewen discusses is the fact that people often aren’t persuaded by reason but by emotion so in that regard it seems silly to pretend that people decide what to buy based on reason.

The law assumes a reasonable person should and will treat puffery as meaningless. But it turned out that so many claims reasonable people presumably treated as meaningless were being treated as meaningful that the ignorant standard came along to say that there should be protection for those folks after all. So when Ewen says people go by emotion, he’s fully consistent with the law saying the FTC should abandon the "reasonable person standard." (It’s unreasonable to think that people will act reasonably as defined in the reasonable standard!)

But despite all that, the FTC at first applied the ignorant standard and attacked puffery, but then was told by the appellate court that it had to retain the reasonable standard and not attack puffery. So they ended up with the weird result of having superceded the reasonable standard generally, except not for puffery. One more reason why I think puffery isn’t treated right.

In other words, with puffery the law assumes a reasonable person standard, and with other types of claims the ignorant standard. . . . What do you think about corporate sponsorship?

The critical factor about corporate sponsorship is, as before, whether claims about it can be taken as implying something factual about the advertised item. If not, then there’s no issue involving deceptiveness. I think there definitely can be cases where the sponsorship makes no such claim; for instance, Miller Beer might announce a sporting event without implying any claim about the beer. Some people might say the name itself is a claim, since it could certainly remind people about that brand, but I don’t think it would necessarily imply a claim unless there was something more.

What about Mobil sponsoring a documentary about wildlife? That would imply they’re environment-friendly. And while it may seem acceptable to have a beer sponsor a sporting event (after all, it’s done all the time), you wouldn’t see a beer company sponsoring, say, a yoga retreat. The yoga people would say "hell no," because there is an implication of association . . . but of course you have to be practical about these things.

What has been the reaction from the industry to your proposals for regulating loophole claims? Is there a movement to get any of them going?

Industry people are not going to respond to my ideas unless there is a threat that the ideas will be taken up by the regulators. The basic problem is that both the industry and the regulators are in favor of the status quo. Usually they are on opposite sides, but since the regulators’ position in this particular case is favorable to industry, the two are not going to fuss over the matter.

An exception to that has recently come along. The redrafters of the Uniform Commercial Code are thinking about making the puffery defense less automatic for the advertisers to raise. I contacted the drafters to offer the support of my arguments, but industry people have lobbied heavily against the change. The UCC is something the industry is not nearly as worried about as the FTC, because the UCC involves mostly cases of individual buyers suing sellers. The only serious reason the industry is concerned about the UCC proposal is the fear of a domino effect; that is, if one legal area makes a change then the others may do so as well.

I have an article that will come out in December in an academic journal that the FTC people read. The article charges the FTC with wrongly assuming that consumers automatically find puffery meaningless, and thus never look to see how they find it. It’s an incredibly wrong decision, I think, to just never examine a whole category of ad claims . . . and just because a case in 1853 drew that conclusion about puffery. If one wants to know what’s going on in the marketplace in 1997, one should look at the marketplace in 1997 rather than looking only in old lawbooks from the last century.

Is there anything people can do to help?

Well, a letter to the FTC won’t make much difference. It will take an argument from inside. But what you’re doing with your magazine is more than the average person can or will do, so I hope you keep it up. Maybe you can get it into the hands of some legislators. We should be entering the next consumer phase soon. We had one in the 1900s, the 1930s, and the 1960s, and I think we can expect something soon. So keep fighting!