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Legal Review: The Dark Side of the Dune

1 Mar, 2014 By: Gregory J. Sater Response

Last year, one of my favorite television commercials consisted of a YouTube-style video (complete with amateurish, hand-held and grainy footage) of an impossibly vertical sand dune, somewhere in the desert, with a dune buggy racing up the side of the dune. The dune buggy gets stuck halfway up the hill — not enough horsepower, not enough torque.

All is lost — until a Nissan Frontier pickup truck comes out of nowhere and, quite improbably, roars at an extremely high speed straight up the dune, pushing the dune buggy all the way up and over the top. Spontaneous cheering erupts from bystanders off screen as the truck circles back and parks at the top of the dune, staring down at the camera like a victorious superhero.

When I first saw the commercial, for 30 seconds I wasn’t sure if it was real, but once I thought about it, it became obvious to me that it was just a humorous exaggeration on the part of Nissan. The truck manufacturer was not seriously telling me that — in real life — that truck actually could do that. It was eye catching for sure, but to me it wasn’t an actual advertising claim.

That, however, is not how the Federal Trade Commission (FTC) saw it.

According to a recently filed FTC complaint, Nissan violated the FTC Act by misrepresenting the capabilities of the Frontier pickup truck. In truth, the agency said, the sand dune actually was not as steep as it looked in the video and the truck had been mechanically assisted in its sprint to the top of the hill thanks to a cable hidden under the sand. It was the cable that had pulled the truck and the dune buggy up the slope. “Special effects in ads can be entertaining,” the FTC said, “but advertisers can’t use them to misrepresent what a product can do.”

There was a super on screen during the ad that said: “Fictionalization. Do Not Attempt.” Didn’t that solve the problem? No, the FTC said. It was too small, it was only onscreen for three seconds, and it only appeared at the beginning of the spot (prior to the truck’s “heroics”) rather than during them. Also, the voiceover had said: “The mid-size Nissan Frontier with a full-size horsepower and torque,” thereby referencing the truck’s torque as the point of the ad.

The FTC also sued the ad agency that created the spot, TBWA Worldwide, alleging it “knew or should have known” that the truck’s capabilities were misrepresented. Both Nissan and the ad agency agreed to consent orders to not make such misrepresentations again.

What does this mean for you? First, never assume that just because you and your advertising agency think something is obviously an exaggeration that the FTC will agree. The agency may take the position that consumers, or a material number of them, will take the ad literally. In this regard, it would be interesting to survey pickup truck purchasers to find out what their takeaway is from watching the sand dune commercial.

Second, never assume that a special effect you use, thanks to the magic of digital video editing, necessarily will be understood by all to be a special effect. The FTC may take the position that some consumers will think it’s real.

Third, if you’re staging an event for your ad but you’re filming it so it looks like it’s an amateur YouTube-type video of a real-life event, be careful. Under the law, product demonstrations need to be real and un-aided. In an ad, a product must perform in an unaltered state. If a special effect is used, that should be disclosed.

Here, the FTC considered a commercial in which the voiceover boasted about horsepower and torque while the video depicted so much horsepower and torque that the truck could rocket up the dune. Perhaps a more prominent super — on screen for longer — or a voiceover disclosure would have made a difference for the FTC.

Nowadays, special effects using digital video editing are extremely common and cheap. As special effects make their way into advertising (and particularly into advertising that is made to look like an amazing amateur video), legal issues such as these are going to crop up with the FTC and other challengers.

Does the ordinary consumer understand it’s just a fantasy? More importantly, does the FTC believe the ordinary consumer understands it? If there’s any doubt, consult qualified legal counsel. ■

About the Author: Gregory J. Sater

Gregory J. Sater

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