Does the Law Have Any Chance Against False Beauty Advertising?

18 Nov 2014 at 5:00pm

Written by
Josh King, Avvo’s Vice President of Business Development and General Counsel

False AdvertisingWe’d like to think that laws against false advertising would make it easier to avoid wasting money on “snake oil” beauty products and treatments. But as author Christopher Kelsey pointed out on the RealSelf blog earlier this year, we are wired in powerful ways to want to take these advertising claims at face value.

We really want to believe that the It Works Body Wrap will melt away our cellulite and tighten our skin. And surely, the Naturaful breast enlargement cream will give a boost to our bust overnight. We’re looking for the magic bullet, the quick and easy way to get the body of our dreams without doing any of the hard work. This provides compelling motivation for those hawking these products to skirt the edges of advertising laws.

False Advertising Is Illegal, But Government Lacks Enforcement Resources
Despite the fact that false advertising is not protected by the First Amendment, it continues to happen regularly. Why? Because while the Federal Trade Commission (FTC) and state attorneys general enact laws against deceptive advertising, and the Food and Drug Administration (FDA) weighs in on similar matters involving cosmetics, these agencies have limited resources when it comes to enforcement.

In the case of the FDA, the agency’s role usually consists of sending “warning letters” to the companies it deems have crossed the line into false and misleading territory. While the FDA can file lawsuits against offenders, such action is rarely taken. Lawsuits are uncertain, expensive, and time-consuming. Knowing this, the sellers of snake oil continue to push the envelope on the claims they make.

Class Action Lawyers Fill Enforcement Need
But what many manufacturers are learning is that it isn’t just the regulators they need to be concerned about. Class action lawyers are filing a growing number of deceptive advertising suits against cosmetics manufacturers, filling the hole left by a lack of federal resources.

While the FDA’s warning letters aren’t typically admissible in court as evidence that a cosmetics company engaged in deceptive marketing, they do act as beacons pointing the way to potential cases. Lawyers can, and increasingly do, use these warning letters to identify and further investigate cases that support class action lawsuits. Companies that feel they can roll the dice on the lack of meaningful agency enforcement may get a nasty surprise when they’re named in a class action complaint.

Class Action Lawsuits Aren’t Easy
While it’s tempting to think that the growth of private enforcement will temper the worst misleading practices, it can only have so much influence. Class action plaintiffs must still prove that the advertising was actually deceptive and that consumers were likely to be harmed.

In recent years, the Supreme Court has raised the bar on class actions lawsuits, requiring that complaints contain far more detailed facts than in the past. This requires more investigation prior to filing a lawsuit, meaning that many smaller cases will never be filed.

The Beauty Industry Will Continue to Peddle Fantastical Products
From the looks of the cosmetics industry, there doesn’t appear to be any shortage of fantastic and likely untrue advertising. Some are cleaned up around the edges, hedged or nuanced just enough to avoid making blatantly false claims. But it’s unlikely that the law itself — whether through government regulators or private attorneys — will ever totally sop up all of the snake oil. Especially not when consumers continue to be so hungry for the magic bullet that’s going to solve their body problems in a snap.

Consumers’ Best Defense: Be Wary!
Ultimately, our best defense as consumers is overcoming our own credulousness. We need to research products thoroughly, look for neutral third-party validation, and remember that if it sounds strange, fantastic, or hard to believe, it’s probably not true.

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