Product Demonstrations Deliver Reward … and Risk7 May, 2013 By: Randall K. Miller, Jeffrey D. Knowles, Venable LLP’s Advertising
Every marketer knows that nothing drives sales like showing the product in action. Product demonstrations are arguably among the most important selling points in direct response marketing. However, the persuasive power of these demonstrations also brings inherent risk because they have become favorite targets for competitor challenges and consumer class action plaintiffs’ attorneys.
Apple’s Siri voice recognition feature, which is included on some iPhone and iPad devices, was recently targeted by a consumer class action alleging that the application does not perform as advertised in television commercials, which depicted Siri performing flawlessly.
The complaint alleged: “Apple never disclosed that the Siri transactions depicted in its television commercials are fiction and that actual consumers using actual iPhone 4S’s cannot reasonably expect Siri to perform the task performed in Apple’s commercials.” The complaint provided anecdotes to illustrate that actual consumer interaction with Siri was uneven, and that Siri sometimes did not work at all.
The Siri lawsuit highlights one of the most important aspects of product demonstrations: the demonstration must depict the performance of the product under conditions that replicate typical usage in the marketplace by ordinary consumers. Accordingly, proper substantiation of product demonstration claims require the use of test protocols that are sufficiently reliable to support that the advertiser’s demonstration replicates typical usage conditions.
In addition, a demonstration cannot be the product of special effects unless: (a) these depictions reflect real world consumer use; and (b) the simulation or special effects are disclosed. As with all advertising, a disclaimer will not save an affirmative demonstration that is false or misleading.
Well-known false advertising cases from courts, the Federal Trade Commission (FTC), and the National Advertising Division of the Council of Better Business Bureaus (NAD) have faulted advertisers for exaggerating product performance or comparative advantages in product demonstrations. Examples include:
- A Lanham Act decision enjoining a commercial where the advertiser exaggerated the risk of leakage from sealable plastic food bags
- An NAD decision requiring changes to an advertisement showing how fast paper towel absorbed a spill
- An FTC matter faulting a commercial that demonstrated the roof strength of a cars by filming cars that had their roofs reinforced during the shooting of the commercial
A common thread among these examples is their powerful visual impact. In fact, product demonstrations are almost always include visual presentations. It is crucial for marketers to remember that the visual depiction constitutes an advertising claim even if unaccompanied by written or spoken words.
Whether the advertising claim is written, spoken or visual, it is critical that marketers adhere to best practices for product demonstrations. These include ensuring that all claims made during a product demonstration are substantiated properly, depict ordinary usage and have all necessary disclaimers.
Jeffrey D. Knowles and Randall K. Miller are partners in Venable LLP’s Advertising, Marketing and New Media Group. They can be reached at (202) 344-4000.