Flawed and
insignificant research propagated in advertisements amount to misleading
advertisements. In the same vein, where an advertisement, is based on flawed
and insignificant research or are contradicted by prevailing authority or
research section 43(a) of the Lanham Act
refers to such advertisements as false. In Alpo
Pet Foods v. Ralston Purina Co.[ii]
the claimant brought a claim of false advertising against Purina whose
adverts that its dog food was beneficial for dogs with canine hips dysplasia
demonstrating that the claims was supported by test results conducted by Purina
which showed that the methods used to conduct the tests were inadequate and the
results could therefore not support Purina’s claims.
insignificant research propagated in advertisements amount to misleading
advertisements. In the same vein, where an advertisement, is based on flawed
and insignificant research or are contradicted by prevailing authority or
research section 43(a) of the Lanham Act
refers to such advertisements as false. In Alpo
Pet Foods v. Ralston Purina Co.[ii]
the claimant brought a claim of false advertising against Purina whose
adverts that its dog food was beneficial for dogs with canine hips dysplasia
demonstrating that the claims was supported by test results conducted by Purina
which showed that the methods used to conduct the tests were inadequate and the
results could therefore not support Purina’s claims.
The case involving Purina
is a common re-occurence in Nigeria specifically the Uyo Metropolis in Akwa
Ibom State. Adverts that make claims that have been rebutted by prevailing
scientific authority can be sighted within the city. (Discovery Park ” Eat a Plate of Isi-Ewu or Nkwobi daily its
is good for your health) such adverts pose health risks for vulnerable
consumers especially the elderly. They lure consumers to make decisions
(purchase decisions) that are based on such claims that have been unseated by
superior evidence like the opinion of Ballentyne[iii] which
states that goat meat though healthy should not be consumed daily. Another
popular case of advertisements that makes flawed research claims are the likes
of Iguedo Goko cleanser, Dazzle Shea
butter. These adverts claim to cure all kinds of ailments and make
diagnosis based external symptoms of a person example rashes, heat flushes,
painful urination etcetera which are not enough base medical diagnosis. The
adverse impacts of these advertisements have led consumers into going against
established medical precaution s and placing their confidence in these products
can eventually worsen their condition and send them to intensive care.
is a common re-occurence in Nigeria specifically the Uyo Metropolis in Akwa
Ibom State. Adverts that make claims that have been rebutted by prevailing
scientific authority can be sighted within the city. (Discovery Park ” Eat a Plate of Isi-Ewu or Nkwobi daily its
is good for your health) such adverts pose health risks for vulnerable
consumers especially the elderly. They lure consumers to make decisions
(purchase decisions) that are based on such claims that have been unseated by
superior evidence like the opinion of Ballentyne[iii] which
states that goat meat though healthy should not be consumed daily. Another
popular case of advertisements that makes flawed research claims are the likes
of Iguedo Goko cleanser, Dazzle Shea
butter. These adverts claim to cure all kinds of ailments and make
diagnosis based external symptoms of a person example rashes, heat flushes,
painful urination etcetera which are not enough base medical diagnosis. The
adverse impacts of these advertisements have led consumers into going against
established medical precaution s and placing their confidence in these products
can eventually worsen their condition and send them to intensive care.
Trade marks
infringement also constitutes false advertisements as it is intended to mislead
and confuse consumers. In Edina Really
Inc. v. TheMLSOnline.com[iv]
the use of a key word in an advert amounted to trade mark infringement and
false advertisement as it was purported to mislead consumers. In Hamzik v. Zale Corps/Delware,[v]
the use of another’s trademark to trigger online advertisements (i.e to
generate traffic) was regarded as a clear cut case of false advertisement and
trademark infringement.[vi]
The case of Polariod Corp v Pzlora
Electronics Corp laid the test for such confusion. False labelling on
products constitutes false and misleading advertisements; it may take various
subtle ways like images that are suggestive, false production origin, false
nutritional value. The Pre-Packaged food (Labelling) Regulations 1995 and
Regulation 18 of The Nigerian Food Products (Advertisement) Regulations[vii]
prohibits false labeling. The Food and Drugs Act 1955 makes it an offence to
give any food exposed for sale a label that falsely describes the food or is
calculated to mislead as to its nature, substance, or quality. Quality was been
defined in the case of Aness v. Grivell[viii]
to mean the commercial quantity and not the commercial description. Quality
also includes nutritional or dietary value of the food and any label construed
to mislead the public on such grounds are misleading advertisements. In Kingston-upon-Thames Royal London Borough
Council v. F.W Woolworth and Co. Ltd,[ix]
the test of false labeling or advertisement as depends on whether a label
or advertisement falsely described food seems to depend on how an ordinary
individual would interpret the description in question. The publishing, giving
or display of such product is a strict liability offence without the element of
mens rea needed to secure a
conviction as decided in Kat v Diment.[x]
The NAFDAC Guidelines for Advertisements of Regulated Products in Nigeria[xi]
recognises the prevalence of herbal medicine amongst Nigerians. In a bid to
protect the consumer from misleading adverts or labeling of herbal medicines
states that such labels and advert shall include the caveat, “These claims have
not been evaluated by NAFDAC.”[xii]
This is not enough protection especially where most adverts by herbal medicine
dealers are aired on public address systems in the local languages and since
the caveat by NAFDAC only requires that it be stated in English language by
implication, it is this lacuna that herbal medicine advertisers exploit and
deceive consumers. Furthermore the NAFDAC regulation does not foresee the
protection of animals even though that is beyond the scope of this work. The
Medicines Act[xiii]
the United Kingdom counterpart of the NAFDAC Regulation takes a more holistic
definition which includes substances or articles manufactured sold or supplied
to be administered to human beings or animals for a medicinal purpose. The
Medicines Act prohibits the issuance of false advertisements relating to
medicinal products. It also states that an advertisement is false or misleading
only if it falsely describes the medicinal properties of the medicinal product
to which it relates.
infringement also constitutes false advertisements as it is intended to mislead
and confuse consumers. In Edina Really
Inc. v. TheMLSOnline.com[iv]
the use of a key word in an advert amounted to trade mark infringement and
false advertisement as it was purported to mislead consumers. In Hamzik v. Zale Corps/Delware,[v]
the use of another’s trademark to trigger online advertisements (i.e to
generate traffic) was regarded as a clear cut case of false advertisement and
trademark infringement.[vi]
The case of Polariod Corp v Pzlora
Electronics Corp laid the test for such confusion. False labelling on
products constitutes false and misleading advertisements; it may take various
subtle ways like images that are suggestive, false production origin, false
nutritional value. The Pre-Packaged food (Labelling) Regulations 1995 and
Regulation 18 of The Nigerian Food Products (Advertisement) Regulations[vii]
prohibits false labeling. The Food and Drugs Act 1955 makes it an offence to
give any food exposed for sale a label that falsely describes the food or is
calculated to mislead as to its nature, substance, or quality. Quality was been
defined in the case of Aness v. Grivell[viii]
to mean the commercial quantity and not the commercial description. Quality
also includes nutritional or dietary value of the food and any label construed
to mislead the public on such grounds are misleading advertisements. In Kingston-upon-Thames Royal London Borough
Council v. F.W Woolworth and Co. Ltd,[ix]
the test of false labeling or advertisement as depends on whether a label
or advertisement falsely described food seems to depend on how an ordinary
individual would interpret the description in question. The publishing, giving
or display of such product is a strict liability offence without the element of
mens rea needed to secure a
conviction as decided in Kat v Diment.[x]
The NAFDAC Guidelines for Advertisements of Regulated Products in Nigeria[xi]
recognises the prevalence of herbal medicine amongst Nigerians. In a bid to
protect the consumer from misleading adverts or labeling of herbal medicines
states that such labels and advert shall include the caveat, “These claims have
not been evaluated by NAFDAC.”[xii]
This is not enough protection especially where most adverts by herbal medicine
dealers are aired on public address systems in the local languages and since
the caveat by NAFDAC only requires that it be stated in English language by
implication, it is this lacuna that herbal medicine advertisers exploit and
deceive consumers. Furthermore the NAFDAC regulation does not foresee the
protection of animals even though that is beyond the scope of this work. The
Medicines Act[xiii]
the United Kingdom counterpart of the NAFDAC Regulation takes a more holistic
definition which includes substances or articles manufactured sold or supplied
to be administered to human beings or animals for a medicinal purpose. The
Medicines Act prohibits the issuance of false advertisements relating to
medicinal products. It also states that an advertisement is false or misleading
only if it falsely describes the medicinal properties of the medicinal product
to which it relates.
Advertisements on
weight loss product have also come under scrutiny for being false and
misleading. While some consumers do not live to tell the story, on a daily
basis vulnerable consumers are influenced by the idea of a perfect body sold by
the media to purchase quick weight loss products. In the Indian case of Smt Divya Wood v Ms Gurdeep Kaur Bhuhi,[xiv]
the court decided that a refund be made to a consumer who paid for a body care
programme that promised weight reduction. After payment and undergoing
treatment the plaintiff did not lose any weight. The apex consumer court said
“we entirely agree with this findings recorded by the fora below such
tempting advertisements, giving misleading statements with regard to the
alleged treatment, are increasing day-by-day and are required to be checked so
that persons may not be lured to pay large amounts in a hope that they can
reduce their weight by undergoing the so-called treatment.” In Jody Gorran v Atkins Nutritional Inc,[xv] the plaintiff Jody Gorran lured by the advert
Atkins Nutritional Inc. proceeded to begin their diet as advertised. Rather
than lose weight Jody Gorran gained high cholesterol levels, angina and some
other heart complications that needed emergency surgery to save his life. He
sued Atkins the courts however did not rule in his favour stating that the
Atkin’s diet book did not constitute advertisements. It appears the decision of
the court was based on the fact that safe and effective methods of weight loss
often involve a modification of behaviour, decreased calorie intake and
exercises. This is not particularly appealing as a result some consumers opt
for weight loss products that promise rapid weight loss with little or no
effort.[xvi]
Despite efforts to curb false and misleading adverts, they have continued to
grow in weight-loss advertisements, this is problematic because some vulnerable
consumers base their decision making on advertising, and advertisements with
false and misleading information pose threats to them. Furthermore, if the
entire field of ‘weight-loss’ advertisement is subject to wide-spread
deception, advertising will lose its role in the efficient allocation of
resources in a free-market economy. This is because other manufacturers end up
advertising the impossible in order to compete and the deceptive promotion of
quick and easy weight-loss solutions could potentially fuel unrealistic
consumer expectations.
weight loss product have also come under scrutiny for being false and
misleading. While some consumers do not live to tell the story, on a daily
basis vulnerable consumers are influenced by the idea of a perfect body sold by
the media to purchase quick weight loss products. In the Indian case of Smt Divya Wood v Ms Gurdeep Kaur Bhuhi,[xiv]
the court decided that a refund be made to a consumer who paid for a body care
programme that promised weight reduction. After payment and undergoing
treatment the plaintiff did not lose any weight. The apex consumer court said
“we entirely agree with this findings recorded by the fora below such
tempting advertisements, giving misleading statements with regard to the
alleged treatment, are increasing day-by-day and are required to be checked so
that persons may not be lured to pay large amounts in a hope that they can
reduce their weight by undergoing the so-called treatment.” In Jody Gorran v Atkins Nutritional Inc,[xv] the plaintiff Jody Gorran lured by the advert
Atkins Nutritional Inc. proceeded to begin their diet as advertised. Rather
than lose weight Jody Gorran gained high cholesterol levels, angina and some
other heart complications that needed emergency surgery to save his life. He
sued Atkins the courts however did not rule in his favour stating that the
Atkin’s diet book did not constitute advertisements. It appears the decision of
the court was based on the fact that safe and effective methods of weight loss
often involve a modification of behaviour, decreased calorie intake and
exercises. This is not particularly appealing as a result some consumers opt
for weight loss products that promise rapid weight loss with little or no
effort.[xvi]
Despite efforts to curb false and misleading adverts, they have continued to
grow in weight-loss advertisements, this is problematic because some vulnerable
consumers base their decision making on advertising, and advertisements with
false and misleading information pose threats to them. Furthermore, if the
entire field of ‘weight-loss’ advertisement is subject to wide-spread
deception, advertising will lose its role in the efficient allocation of
resources in a free-market economy. This is because other manufacturers end up
advertising the impossible in order to compete and the deceptive promotion of
quick and easy weight-loss solutions could potentially fuel unrealistic
consumer expectations.
Making false promises
in order to sell a product is another unfair and misleading advertising tool.
Promotional advertisements in general encourage the consumption of these
products in large quantities in avid to win the lucky reward. In the case of Bonn Nutrients Pvt. Ltd v Jagpal Singh[xvii]
a consumer brought a complaint that in order to promote a brand of bread
called “Bonn” the manufacturers announced through advertisements that
each packet will contain a scratch and win coupon. The consumer-complainant claimed
he bought several quantities of the product but every time he scratched the
coupon it read “try again”. The court ruled in his favour and stated
that the advertisements misled the general public and it had not made good on
the statements it made in its advertisements. Cases like “Bonn” exists
howbeit; the regulatory agency saddled with the responsibility is the Nigerian
Lottery Commission. They appears to be only concerned with ensuring that the
lucky prize exists and nothing more. It can be said conclusively that these
regulatory agencies do not provide protection for the consumer who might be
harmed by his efforts to win the coveted prize, however, the efforts include
excessive consumption of the product.
in order to sell a product is another unfair and misleading advertising tool.
Promotional advertisements in general encourage the consumption of these
products in large quantities in avid to win the lucky reward. In the case of Bonn Nutrients Pvt. Ltd v Jagpal Singh[xvii]
a consumer brought a complaint that in order to promote a brand of bread
called “Bonn” the manufacturers announced through advertisements that
each packet will contain a scratch and win coupon. The consumer-complainant claimed
he bought several quantities of the product but every time he scratched the
coupon it read “try again”. The court ruled in his favour and stated
that the advertisements misled the general public and it had not made good on
the statements it made in its advertisements. Cases like “Bonn” exists
howbeit; the regulatory agency saddled with the responsibility is the Nigerian
Lottery Commission. They appears to be only concerned with ensuring that the
lucky prize exists and nothing more. It can be said conclusively that these
regulatory agencies do not provide protection for the consumer who might be
harmed by his efforts to win the coveted prize, however, the efforts include
excessive consumption of the product.
END NOTES
[i] Akpan, Emaediong Ofonime is
currently undergoing postgraduate studies at the University of Uyo and majors
in Consumer Protection. She can be reached at akpanemaediongofonime@gmail.com.
currently undergoing postgraduate studies at the University of Uyo and majors
in Consumer Protection. She can be reached at akpanemaediongofonime@gmail.com.
[ii] 913 F.2d 958 (D.C. Cir. 1990)
[iii] D Ballentyne, www.supplementsource.co.ca
accessed 9th January 2017.
accessed 9th January 2017.
[iv] (2006) WL 737064. See also F.T.C v. Sili Neutralceutical 154
F.SUPP 2D 497. And Playboy Enterprises Inc.
v. Netscape Communication Corps 55 F. SUPP 2D 1070 (C.D CAL).
F.SUPP 2D 497. And Playboy Enterprises Inc.
v. Netscape Communication Corps 55 F. SUPP 2D 1070 (C.D CAL).
[v] NO3 : 06-CV-1300
[vi] The Trademark Act CAP T 13 LFN
2004 regulates the use of a trademark. Consequently, the use of a trademark
identical to that of COCACOLA by AJE[vi] to sell an identical
product ‘Big Cola’ amounts to only an infringement of trade mark because the
existing framework’s definition of false advertisement does not bring into its
purview trademarks infringement. Consumers were under the impression that it was
coca cola. One trader noted that she was mislead to purchase ‘Big Cola’ thinking it was Coca
cola, she lost customers who came to purchase coca cola because she sold ”Big Cola’ to consumer unknown to her
that it wasn’t Coca-Cola which the
customer requested.
2004 regulates the use of a trademark. Consequently, the use of a trademark
identical to that of COCACOLA by AJE[vi] to sell an identical
product ‘Big Cola’ amounts to only an infringement of trade mark because the
existing framework’s definition of false advertisement does not bring into its
purview trademarks infringement. Consumers were under the impression that it was
coca cola. One trader noted that she was mislead to purchase ‘Big Cola’ thinking it was Coca
cola, she lost customers who came to purchase coca cola because she sold ”Big Cola’ to consumer unknown to her
that it wasn’t Coca-Cola which the
customer requested.
[vii] 1994 NO.15. S.I 13 of 1996
[viii] (1915) 3KB 685, at p.691.
[ix] (1968) 1Q.B. 802.
[x] (1951) 1 K.B. 34.
[xi] NAFDAC
is empowered by the NAFDAC Act CapN1 LFN 2004 to regulate and control the
manufacture, exportation,
importation, and advertisement of medicines, cosmetic, medical devices, bottled
water and chemicals. The
Advertisement Control Division in the directorate of Registration and
Regulatory Affairs of NAFDAC.
is empowered by the NAFDAC Act CapN1 LFN 2004 to regulate and control the
manufacture, exportation,
importation, and advertisement of medicines, cosmetic, medical devices, bottled
water and chemicals. The
Advertisement Control Division in the directorate of Registration and
Regulatory Affairs of NAFDAC.
[xii]
Regulation 10
Regulation 10
[xiii] 1968
[xiv] (1989) L.P.A No. 646
[xv] No. 2004-CC-006591-MB(Fla. Palm Beach County
Ct.May 26,2004)
Ct.May 26,2004)
[xvi] J
Cawley et all, ‘The Effect of Advertising on Consumption: The Case of Over-the
Counter Wight Loss Products’ (2011)
University of Cornell Law Review
Cawley et all, ‘The Effect of Advertising on Consumption: The Case of Over-the
Counter Wight Loss Products’ (2011)
University of Cornell Law Review
[xvii] IV (2005) CPJ 108 NC.
Akpan, Emaediong Ofonime is
currently undergoing postgraduate studies at the University of Uyo and majors
in Consumer Protection. She can be reached at akpanemaediongofonime@gmail.com
currently undergoing postgraduate studies at the University of Uyo and majors
in Consumer Protection. She can be reached at akpanemaediongofonime@gmail.com
Photo Credit – Here