Article Analysis
What's Wrong "Deceptive" Advertising? Daniel Attas
ABSTRACT. In this paper I present a moral account of the legal notion of deceptive advertising. I argue that no harmful consequences to the consumer need follow from a deceptive advertisement as such, and I suggest instead that one should focus on the conse- quences of permitting the practise of deceptive adver- tising on society as a whole. After a brief account of 'deceptive advertising', I move to discuss the role of the reasonable person standard in its definition. One interpretation of this standard is empirical, aiming to objectify the quality of misleadingness in the adver- tisement. I offer an alternative normative interpreta- tion which aims to draw the line between the advertiser's responsibility and that of the consumer, between misleading and miscomprehension. I then examine and reject several possible moral grounds for condemning and prohibiting deceptive advertising. These include: harm, in the sense of welfare, to the misled consumer; harm to competitors; and a viola- tion or a reduction of the consumer's autonomy. Finally, I explain how the effect of the practise of deceptive advertising on society as a whole should inform our normative line-drawing between mis- leading and miscomprehension, and how it provides the basis for the moral evaluation of deceptive adver- tising.
The title question has received remarkably, though perhaps not surprisingly, little attention.' It might be thought that whatever is morally condemnable about deceit in general, will also be so with respect to deceptive advertising in particular. But the inference is flawed, for the legal notion of 'deceptive advertising' (DA), as defined by the Federal Trade Commission (FTC), for example, and as analysed by social scientists, lawyers and philosophers alike, focuses entirely on the consumer's viewpoint to the neglect of that of the deceiving advertiser. As such it does
not necessarily involve deceit as a deliberate act.^ This being so one cannot take for granted that whatever is wrong with deceit must also be wrong with 'deceptive advertising'.
I aim to show that what is wrong with DA is not related to the vices generally associated with lying and with deceit as such. Neither the inten- tion of the advertiser nor the erroneous beliefs of the misled consumer factor in the moral account of DA. Moreover, the harmful, but contingent, consequences of behaviour influ- enced by a deceptive advertisement cannot provide reasons for condemning it in and of itself. If no harmful behaviour follows from such an advertisement nothing morally blameworthy ensues. I shall suggest instead that, to explain the moral fault involved, one should focus on the consequences of permitting the practise of decep- tive advertising on society as a whole.
I begin by a brief account of'deceptive adver- tising'. Restating the commonly accepted notion that a deflnition of DA focuses on the effect on consumers rather than the intention of adver- tisers, I suggest that DA is more precisely char- acterised as misleading advertising, and distinguish misleadingness on the one hand from deceit and lying on the other (section I). I then move to discuss the role of the reasonable person standard in the definition of DA. One interpretation of this standard is empirical, aiming to objectify the quahty of misleadingness in the advertisement. I argue that such an interpretation is implausible (section II). I offer an alternative normative inter- pretation which aims to draw the line between the advertiser's responsibility and that of the consumer (section III). I then examine and reject several possible moral grounds for condemning and prohibiting DA. These include: harm, in the
Journal of Business Ethics 2 1 : 4 9 - 5 9 , 1999. © 1999 Kluwer Academic Publishers. Printed in the Netherlands.
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sense of welfare, to the misled consumer (section IV); harm to competitors (section V); and a violation or a reduction of the consumer's autonomy (section VI). Finally, I explain how the imphcit presumptive basis was an obstacle for the argument and, after revising it, how the effect of the practise of DA on society as a whole should inform our normative line-drawing between misleading and miscomprehension (section VII).
I. "Deceptive advertising" without deceit
To deceive, in its every day usage, means to intentionally cause a person to hold false beliefs. The notion of deceit differs from lying in two respects. (1) Deceit can be non-verbal as well as verbal, whereas lying is always verbal. (2) Deception implies success in causing someone to hold a false belief, whereas lying implies only an attempt to do so. Deceit is an outcome concept, lying is not: it is necessary to look at the outcome of whether the would-be deceived person actually comes to hold false behefs in order to determine whether or not deception has taken place.'' Deceit is also similar to lying in one important respect: (3) both lying and deceit are intentional, it is the purpose of the liar or the deceiver to cause another person to hold false beliefs (or at least beliefs that are considered false by the deceiver). Both deceit and lying are, there- fore, agent-centred concepts: it is necessary to look at the suspected liar/deceiver's intention in order to determine whether or not there has been an act of deception or a lie.
The legal notion of DA notoriously ignores intention. It focuses primarily, if not uniquely, on the consumer's perception of the advertise- ment rather than on the act of 'deceiving'. The intentional input is deemed irrelevant and the question of deceptiveness hinges entirely on the causal relation between the advertisement and the false beliefs of the consumer. Thus, "deceptive advertising" is better characterised as misleading advertising."* Both deceiving and misleading are outcome concepts, the difference is in the lack of intention, possibly even the lack of agency, in the case of misleading. It is analogous to the
difference between murder and killing: a person can be killed in an avalanche, or in a car accident, but can only be murdered by the intentional act of an agent. To determine whether a person was murdered or merely killed it is necessary to look at the intentional nature of the act, or the state of mind of the agent.
Now, misleadingness is twice removed from lying: not only is it, like deceit, an outcome concept depending on the success of causing a misled person to hold false beliefs; but also, unlike deceit, it is non-intentional, being entirely independent from the intentions of the mis- leading agent (if such an agent exists). If DA is truly 'misleading advertising', as is generally accepted, then this introduces a difficulty. For in the moral assessment of misleading advertising^ we cannot indiscriminately adopt all the justifi- cations for prohibiting or condemning lying. Since lying is an act-concept and intentional our moral evaluation of lying must depend, at least partly, on these facts."̂
II. Objectifying misleadingness
When DA is defined in a way that entirely ignores intention and focuses exclusively on the outcome a problem ensues. How ought we dif- ferentiate between cases where a consumer comes to hold false beliefs after exposure to the adver- tisement but due to his own idiosyncrasies which could not have been catered for, and cases where the false beliefs are exclusively and unproblem- atically a result of exposure to the advertisement? Conversely, ho'w do we deal with cases where highly intelligent and alert consumers are unaf- fected when most others come to hold false beliefs? Should every case of post-exposure belief distortion be considered misleading? Is an adver- tisement that causes false beliefs in some but not in others, deceptive or not?
To deal with this problem the reasonable person standard, or one similar to it, has been invoked. An advertisement will be deemed misleading or deceptive only if it is reasonable to expect that persons exposed to it, or those targeted by it, would come to hold false beliefs as a result of exposure to it. The reasonable
What's Wrong with "Deceptive" Advertising? 51
person standard is introduced as a means to objec- tify the misleading nature of the advertisement.
But there is something patently false in the idea that an advertisement can be, in and of itself, objectively misleading. Cannot any communi- cated message be misleading to some of the people, some of the time? Misinterpretation is a real possibility even for the most 'reasonable' person. A dog at a distant hill might be believed by Abraham to be a sheep: the angle of the sun, the fact that he saw a sheep at the same place the day before, the fact that the dog is slightly hidden by a tree etc. Another person might see that same dog from a different angle, distance, past experience etc. and recognise it as such. Whatever creates the distorted behef in Abraham isn't merely the sheep, nor is it the sheep plus the spatio-temporal qualities of the situation. It is also due to the total context of Abraham's prior expe- rience, as well as culture- or age-specific set of values and expectations he brings to the situa- tion.^ A distorted perception cannot be attrib- uted exclusively to the objective features of the perceived thing, there always exists a subjective input.
So much more so in the case of the commu- nication of messages such as advertisements which carry within them the seeds of multiple interpretations or miscomprehension.^ The internal sources (i.e. excluding noise) of distor- tion in the perception of a communicated message are several. These can be arranged under three headings. (1) The first source of distortion is the audience itself. Lack of certain knowledge that is presumed to be shared with one's audience; a degree of inattentiveness to the message; the audience's particular experiences or lack of experience; the audience's cultural back- ground which may differ from the speaker's. (2) The content of the message can obviously be another source of distortion. Non-maliciously false statements, such as poetry, or nonsense; a particular combination and/or order of state- ments; cumbersome or bad grammar; accompa- nying images which could suggest a meaning other than that intended; slang, culturally loaded, associative, or metaphorical phrasing; ambiguous or vague words.' (3) A further source of distor- tion lies in the context in which the message
appears. Its proximity to other events or messages; the time of day, or year at which the message is received; as well as the difference in time between transmission of the message and its reception. The foregoing is only a partial list.
The three sources of distortion outlined above are interlinked. Non-sensical statements, or lines from famous poems should not be misinterpreted by anyone who shares the cultural background of the speaker. Some accompanying images would not have the same suggestive effect in the evening as they would in the morning. A metaphorical statement made at one point might take on board a different meaning at the time of reception of the message if, for example, in the meantime, a significant public event has occurred, (e.g. "Model X is a killer" before and after a publi- cised mass injury car accident).
The (targeted) reasonable person standard has been invoked in order to objectify the distortive effect of an advertisement. To say that the reasonable person would be misled by the adver- tisement means that the probability that a consumer would be misled by the advertisement is sufficiently high. This has sometimes been understood as the statistical assertion that a suf- ficiently high percentage of the exposed con- sumers would be misled by the advertisement.'° Besides the problem of what makes the per- centage of misled consumers significantly high (which amounts to the projection of the original problem to another dimension), I argued that the distortiveness of a communicated message is not prone to objectification.
III. Assigning responsibility
There is another possible approach. Instead of attempting to objectify the distortiveness of an advertisement, it is plausible to view the reason- able person standard as a means of ascribing responsibility. Since the message itself cannot carry any responsibility the issue is one of assigning responsibihty either to the speaker or to the audience. When the speaker is considered responsible for the distortion we say that the message is misleading, when the audience is
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responsible for the distortion we say that the message has b e en miscomprehended.
The misleadingness of an advertisement becomes a purely normative issue. It is not something that can be determined empirically. The reasonable person standard sets a level of attentiveness required from the consumer, a degree of self-knowledge, experience and critical capacity. The reasonable person is considered autonomous up to a plausible level. A reason- able person would recognise an advertisement as one that could create a false impression in him. It would signal him to activate all his self-defence mechanisms. As a member of a foreign culture he should know that he is likely to misinterpret some of what he sees or hears, as a lay person with no formal education in medicine or phar- macology, for example, he should know that he is likely to misunderstand some of the informa- tion transmitted on drugs and their effects.
The difference between the two interpreta- tions of the reasonable person standard can be further clarified by the following analogy. Is a road with a certain amount of sharp bends, narrow shoulders, bumpiness etc. considered unsafe? To determine whether a road is dan- gerous the 'positive' reasonable person standard would look at the number of road accidents as a percentage of the amount of traffic in any span of time. This leaves the problem of how high the rate of accidents must be for the road to be con- sidered unsafe. The 'normative' standard would consider the level of safe-driving required from the motorists. A high rate of accidents on the road would neither make the road unsafe, nor the constructors responsible, if motorists regularly indulge in dangerous driving practices. On the other hand, a low rate of accidents would not make the road safe if motorists generally take care way beyond what is reasonably required, by driving well below the speed limit, by being super attentive, resulting in stiff backs and stressful driving. To solve the problem of the significance of the percentage of accidents the positive standard must smuggle in a normative consider- ation." The normative standard, on the other hand, self-consciously considers the responsibility of the motorists as well as that of the road con- structors or the contracting government agency.
Whereas car accidents are obviously bad con- sequences of dangerous roads which would make the responsible agents blameworthy, it is not so clear what morally bad consequences are involved in holding false beliefs following exposure to a misleading advertisement.
IV. Harm to consumers
A misleading advertisement is one that causes a distorted perception and for which the advertiser is considered responsible. What consequences of a misleading advertisement make it morally wrong? Does a misleading advertisement harm the consumer in terms of reducing his welfare? It might be thought that the consumer, misled by an advertisement, will be tempted to buy the advertised product and in that way either getting less than he thought he would or paying more than he should (other equivalent brands being available at a lower price).'^ But too much is assumed here.
To begin with, it is possible that a consumer is misled by an advertisement and yet not be encouraged at all to act. For example, Abigail might come to believe after exposure to an advertisement for "Pure & Simple" mineral water that this brand has special qualities for relieving tension. Since she doesn't consider herself a particularly tense person, the thought of pur- chasing the water never even crosses her mind. Also, false statements with respect to the inclu- sion, exclusion, or exact amount of a certain ingredient, may be considered irrelevant by all potential consumers. For example, a claim that a slice of a particular brand of cheese has the equivalent amount of calcium as 5 ounces of milk, when in truth it only has the equivalent of 3.5 ounces of milk, may have no affect on anyone's purchasing behaviour.''' For this reason the FTC deception policy statement of 1983 limits the range of advertising regarded as legally deceptive by adding a materiality condition. This requires that the act or practice considered mis- leading "is likely to affect the consumer's conduct or decision with regard to a product or service. If so, the practice is material, and consumer injury is likely because consumers are likely to
What's Wrong with "Deceptive" Advertising? 53
have chosen differently but for the deception." (FTC, 1983, pp. 689-690, cited in Ford and Calfee, 1986, p. 87) This suggests that strictly misleading advertising is considered by the FTC as legally (and morally?) innocent, unless the misleading representation is material.
Now, a misleading advertisement may affect a consumer's conduct in a way which is not harmful. In other words, the materiality condi- tion may be met, though no injury would follow.'"* The effect of "Pure & Simple" adver- tising campaign may have no effect on the price of the water. Other qualitatively equivalent brands may be similarly successful due to com- petent (non-misleading) marketing. Benjamin might choose to switch brands of mineral water and it would not cost him a penny more. Also, the fact that his tension would not be relieved need not harm him since his decision to consume the mineral water might be independent of any other thoughts he had about dealing with his tension. That is, he would or would not change his lifestyle, seek professional help, etc., regard- less of how much 'Pure & Simple' he consumes. Furthermore, a misled consumer may act in a way which is beneficial. Benjamin's belief that 'Pure & Simple' relieves tension might actually contribute to the relief of his tension. I can sum up by saying that, in general, the harm resulting from acting in a certain way as a consequence of being misled is contingent and, therefore, cannot be the factor that makes the misleading, in and of itself, harmful.
Some people may think that holding a dis- torted view of things, holding as true something that is generally or critically believed to be false, is of itself harmful. A person is harmed when he comes to hold such beliefs. But it is not clear in what way one's welfare is at all affected when one does not act on these beliefs. Other things being equal, the welfare of atheists isn't necessarily dif- ferent from that of devout believers merely because one set of persons holds a true belief and the other - a false one.
Now it is generally the case that individuals prefer their beliefs to be true. It might seem, then, that one's welfare, in the sense of prefer- ence satisfaction, is reduced when one's belief is false. But I think that preference satisfaction is
irrelevant to the agent's welfare when the agent doesn't know if his want has been satisfied or not. I want my great grand children to live in a healthier environment: will the actual facts to which I am necessarily ignorant make the slightest difference to my happiness today? Would not my belief that my descendants environment be healthier, unfounded though it may be, enhance my welfare? It is not merely the fact of my preference having been satisfied or frustrated that has an effect on my welfare. Rather, it is also the epistemic aspect ofthe matter: in my knowing that this is the case, and, in the absence of knowl- edge, in my believing that my preference has been satisfied. So, though a person may prefer to hold true beliefs, his holding false beliefs will not affect his welfare since he necessarily believes his false beliefs to be true.
In short, being misled, believing something which is false (or generally thought to be false, or would otherwise believed to be true) isn't in and of itself harmful. We have not yet found a moral basis to condemn misleading advertising per se.
V. Harm to competitors
Another possible objection to deceptive adver- tising is that it harms competitors by reducing their sales.'^ If Deborah would buy 'Pure & Simple' rather than 'Mother Nature' mineral water this wouid allegedly harm the manufacturer and retailer of'Mother Nature'. To evaluate this claim it would be useful to distinguish between harm and competitive loss. Whenever a new com- peting business enters the market it attracts some of the established businesses' customers, thereby reducing their sales and entailing a loss. But such a loss is not considered a harm: it is part and parcel of the notion of competition that one competitor's legitimate gain is the loss of another. When one business invests in more intensive or competent advertising resulting in increased sales and gains, this creates a loss for its competitors. But competitors are not harmed when one benefits from investing in more advertising. Now, why would reduced sales due to deceptive advertising be considered a harm rather than a legitimate competitive loss? What morally sig-
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nificant difference exists between the loss caused by deceptive advertising and that caused by greater advertising?
A competitor is harmed, and not merely suffers a competitive loss, when his loss is due to an unfair (dis)advantage. The argument that aims to explain the moral fault in deceptive advertising in terms of harm to competitors is circular in two complementary ways.
First, to claim that DA harms competitors is to presume that DA is an unfair advantage. What could possibly ground such a presumption? In this context, appeal to the moral iUegitimacy of deceptive advertising begs the question. One cannot hold both that what makes deceptive advertising morally wrong is the loss accrued to competitors, and that what makes the loss to competitors wrong (a harm) is the morally ques- tionable practice of deceptive advertising. I claim neither that deceptive advertising is a fair or proper practise, nor that it creates no loss to com- petitors,'^ only that in so far as such unfairness exists it cannot be explained in terms of the loss accrued to competitors. Since for that loss to be considered a harm, rather than a legitimate con- sequence of competition, deceptive advertising must be judged wrong on independent grounds. In the absence of a significant difference between loss due to normal competitive practices and loss due to deceptive advertising one must either take the view that all loss to others, and therefore all competition and all advertising, is morally wrong, or that there exists some difference between the two kinds of practices which make the former fair and the latter unfair but that this difference is not explainable in terms of harm to competi- tors. 17
Second, to claim that DA harms competitors is to presume that DA is an unfair advantage. The argument that deceptive advertising is wrong because of the harm it inflicts on competitors turns out to be circular in another way. If there is no norm condemning deceptive advertising as such, and it is generally tolerated or widely prac- tised, this doesn't put any competitor at a com- petitive disadvantage. A disadvantage exists only if an option open to one or some of the com- petitors isn't open to all. Hence, deceptive advertising will harm competitors only if it is
legally prohibited, and when practised or toler- ated only in a minority of cases. But then the harm cannot be invoked as a ground for pro- hibiting deceptive advertising. I claim neither that deceptive advertising is an acceptable or widely practised norm, nor that it creates no loss to competitors, only that the justification of such a norm or of the attaching of sanctions to its infringement, cannot be made in terms of the loss accrued to competitors. Since for that loss to be considered a harm, rather than a legitimate consequence of competition, the norm against deceptive advertising must already be in place, closing that option to the disadvantaged com- petitor.
I do not deny that deceptive advertising, can cause a loss to competitors. My claim is not empirical, it is normative: I claim that for this loss to count as a harm (a moral notion) we need independent grounds to condemn deceptive advertising and we cannot simply point to the loss (an empirical notion) caused to competitors. For there is nothing which distinguishes this loss from other non-harmful losses unless we already know that deceptive advertising is morally wrong, or unfair, and that the option of decep- tive advertising is closed to those incurring a loss due to independent factors rather than due to the norm condemning it.
VI. Autonomy
It might be suggested that the grounds for con- demning deceptive advertising lies not in its effect on welfare but on the fact that it reduces autonomy. This claim is harder to evaluate due to the many different conceptions of autonomy. Nevertheless, I think that by looking at the two central uses of the term in ethical discourse I can make a plausible, if not definitely conclu- sive, case against such a claim.
The first meaning of autonomy is one that views it as a psychological capacity (PC- autonomy). This includes the capacity and dis- position to choose rationally, to be willing to subject one's choices to critical scrutiny, and to be able to review and to reject them when one concludes that this is required, not to accept
What's Wrong with "Deceptive" Advertising? 55
blindly and unconditionally the edicts of tradi- tion or external authority, and to be free from internal obstacles, inhibitions, prejudices and neurotic compulsions.'^ Though persons diverge significantly in the extent to which they have and exhibit this capacity, it is considered a moral ideal to which all should aspire. As such, it imposes duties on others to refrain from acting in ways that will reduce this capacity in oneself or otherwise infringe it, as well as duties on oneself, on one's parents, on the educational authorities and on government, to cultivate and enhance it.
Does deceptive advertising infringe or reduce one's PC-autonomy? Now, holding false beliefs does not reduce any of the capacities associated with PC-autonomy. They could, of course, be the basis of a wrong decision. Any argument with a false belief as a premise would be unsound. Though the reasoning may be impeccable, we have no guarantee that the conclusion would be true. But this is exactly the point: one could embrace a false belief autonomously, and then autonomously review former choices and proceed to make new choices based on this belief. The choice might not be the one I would make based on the contrary belief, it might be one I would regret if and when I ever come to see the truth of the matter. Nevertheless, nothing in the notion of PC-autonomy rules out the pos- sibility of making a wrong, regrettable choice, or the possibility of holding a false belief.
The other meaning of autonomy is the right to autonomy (R-autonomy). It is a right that the exercise of one's PC-autonomy not be obstructed. It is a right to do what you really want to do and against manipulation by others. Such manipulation can take the form of affecting your acts directly by making you do what you do not want to do (threats and coercion), affecting your acts by changing your desires or preferences (illegitimate forms of persuasion), or by changing your beliefs so that you apply the wrong means to your ends (deception). These forms of manip- ulation needn't serve the manipulator's interest, he might have the good of the manipulated subject in mind (paternalism). But for all these forms to count as manipulation, and hence as R - autonomy violations, they must be intentional. In other words they must be the deliberate act
of an agent. Deception is a form of manipula- tion, but misleading needn't be. If misleading is non-intentional then it is not manipulative. Since "deceptive advertising" is really misleading adver- tising, i.e. not necessarily intentional, the moral grounds for condemning it cannot be its manip- ulative nature or its violation of R-autonomy.
VII. Normative line drawing
The discussion so far has been conducted on the basis of some implicit presumptions which it is time to explicitly revise. First, it was presumed that the line distinguishing "misleading" from "miscomprehension" is given. Thus, the pre- scription of the reasonable person standard is independent from the moral evaluation of mis- leading advertising: we know when an adver- tisement is misleading, the only question left unanswered is why this is morally wrong. Second, it was presumed that the fault in mis- leading advertising is to be found in the conse- quence of being misled, i.e., in the fact that one comes to hold a false belief. The only morally relevant difference, on this view, between mis- comprehension and misleading is that in the latter there exists an agent other than oneself on whom we can lay the blame and from whom we can extract compensation. Third, it was presumed that the harmful consequences which ground the moral condemnation of DA are to be found in the isolated act of a misleading advertisement. Thus, whenever an advertisement (or any other communicated message, for that matter) misleads, some bad consequences follow, and these conse- quences are the basis for our moral evaluation of the act.
I now want to revise the presumptive basis of the argument in the hope of bringing us closer to the moral grounds for evaluating DA. Rather than looking at the consequences of a single act of a misleading advertisement, I suggest we look at the consequences of the practise of misleading advertising. That is, the situation where no disin- centive is legally instituted for negligence in the distortive transmission of information in adver- tising. This also suggests that instead of looking at the consequences of a consumer holding a false
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belief due to a misleading advertising message, we look at the consequence of a high likelihood of consumers in general being misled. Thus, the morally relevant harm is not necessarily or uniquely that imposed on the misled person, but the harm imposed on society at large. It is these expected consequences, as I shortly proceed to explain, that should inform our decision on where to draw the line that differentiates mis- comprehension from misleading. Miscompre- hension, in itself, need not result in any harmful consequences; it is, rather, the fact of generally practised or tolerated negligence in conveying information in advertising that has harmful consequences.
The reasonable person standard aims to delin- eate the border between misleading on the one hand and miscomprehension on the other. It is the line that separates the advertiser's responsi- bility for distorted perception of information from that of the consumer. What needs justifi- cation is a certain standard, a normative principle for assigning responsibility. In setting the standard one must take care not to make it too strong, in a paternalistic sense, taking an overprotective attitude towards the consumer. O n the other hand, one must not make the standard too weak, permitting all but the most blatant forms of misinformation and deception.
Setting too strong a standard will relieve the consumer from watching, listening or reading advertisements in an attentive, critical and self- critical manner. It encourages mental laziness in the consumer and might lead to the erosion of his PC-autonomy. An overprotective standard also fails to treat the consumer with the respect due to an autonomous subject. In setting a standard that treats persons with proper respect one must assume that the consumer is respon- sible for miscomprehension when he is unrea- sonably inattentive in receiving and processing the advertising message, when he chooses to disregard the facts of his inexperience and ignorance, or when he does not allow for the possibility of his own culture-based miscompre- hension of messages. Respect for autonomy requires not only protection from manipulation but also the recognition of responsibility, allowing a person to make his own mistakes, and pay the
price for his errors. Moreover, an overprotective standard may make producers and service sup- pliers hesitant to advertise their commodity. A standard that de-emphasises the consumer's responsibility may make potential advertisers anxious about the costs of possible litigation and any compensation they may be required to pay. Under-advertising could result in sub-optimal flow of information reducing efficiency in the functioning of the market, A standard of reason- ableness that is too strong, may turn out to be self-defeating towards advertising's primary function.
Setting a standard that is too weak, a standard that is too forgiving towards the advertiser, fails to protect from possible harm to the consumer and does not provide a basis for the extraction of compensation in such cases,'^ It encourages negligence in the advertiser and might also lead to the erosion of his own PC-autonomy by weakening his self-conception of responsibility. Moreover, it harms the general level of trust, requiring consumers to be constantly on guard against a possible distorted perception of infor- mation to which they will be held uniquely responsible. Above a certain threshold this may cause a complete breakdown of trust that will result in consumers mentally switching off whenever they get exposed to advertising. If the information transmitted by advertising is essen- tial to the smooth and efficient running of the market, a standard of reasonableness that is too weak, resulting in a high occurrence of distorted perceptions, turns out to be self-defeating towards the function of advertising.
I am reluctant to make my argument any more concrete in terms of social policy than I already have. Drawing implications for social policy is a practical matter and I would be wrong to attempt this here. Setting the appropriate standard is a tricky, developmental process: applying cultural norms and widely shared intuitions, observing the effect of such an application, and correcting the standards applied on a trial and error basis. What I suggested is that rather than looking at the effect of an isolated advertisement on an individual consumer, we look at the effect of general mass advertising on the public to which it is exposed.
What's Wrong with "Deceptive" Advertising? 57
Two criteria should inform our assessment of these effects:
(1) Respect for consumer and advertiser autonomy. Holding to some notion of a norma- tively required plausible level of autonomy, we ask: does the standard of reasonableness, set forth and legally enforced, have the effect of enhancing advertiser's and consumer's autonomy, self-criti- cism and sense of responsibility, or does it encourage contented ignorance, slackness, mental laziness, dependence and a gradual deterioration of the capacity for autonomy. There is a clause to this criterion: it follows that standards ought to be different when targeted audiences are expected to be different with respect to their autonomy. The most obvious relevant factor is age. It should not be assumed that toddlers have any self-critical abilities. The standard set in this case may be as high as a general prohibition of any advertising aimed at such tender ages. As autonomy develops with maturity, it can be assumed that the older the targeted child the more relaxed the standard of reasonableness that ought to be imposed.^°
(2) Optimal information flow. On the one hand, some idea, backed by empirical observa- tion, of where credibility is eroded to a point of mental switch-off to advertising by consumers, on the other hand, some idea, backed by empir- ical observation, of where the threat of litiga- tion inhibits producers and service suppliers from advertising at all, \vith the effect of reducing the amount of information that ultimately reaches the targeted audience. We ask: does making our standard more stringent and protective towards consumers, or weakening it, making it more forgiving towards advertisers, have the effect of increasing or decreasing the flow of information? It is desirable and possible that the optimum for which we aim would be achievable by a range of standards and not necessarily by a unique and precise standard of reasonableness. Two further considerations may affect how wide the range of possible standards will actually be and where it will be situated in terms of stringency: (a) the degree to which the media is advertising-inten- sive; (b) advertiser's commitment to moral norms of honesty and veracity. It is a plausible assump- tion that the greater the extent to which con-
sumers are subject to advertising, i.e., the more the mass-communication environment is adver- tising-intensive, the closer consumers come to the point of saturation in their critical faculties with respect to advertising. Thus, the higher the general level of exposure to advertising, the more stringent and protective, the standard of reason- ableness ought to be.̂ ^ On the other hand, if advertisers are sensitive to moral norms of honesty and veracity, and are generally perceived to be so, then the atmosphere of trust this engen- ders may in itself affect the point at which mental switch-off occurs regardless of the legal standard of reasonableness imposed. The importance of these two considerations cannot be exaggerated, for they offer a lever where it might be thought an impasse is reached. Since the range of possible standards allowed by the criterion of optimal information fiow is determined by two inde- pendent factors - the point where audience reach saturation, and the point where producers are reluctant to advertise — this range might be negative. It is at least logically possible that the point above which consumers are open to infor- mation from advertising is higher in terms of standard-stringency than the point below which producers and service suppliers are happy to release the relevant information through adver- tising. That is, the range of sub-optimal infor- mation-flov\^ due to audience saturation and the range of sub-optimal information flow due to advertiser's perceived litigation risk overlap, so that no standard of reasonableness could achieve the desired optimum. This apparent impasse can be overcome by one or both of the following measures. First, a commitment by the advertising industry to norms of veracity and honesty, the nurturing of trust, and the undertaking of con- fidence-building measures, which in due course would achieve an improved atmosphere reducing the point of audience saturation and conse- quently also the required stringency of the standard of reasonableness. Such a measure can only be taken on a voluntary basis either by individual advertisers or by industry-wide self- regulation. Second, a means more amenable to social regulation, the media can be made less advertising-intensive. Restricting broadcast-time, newsprint- and billboard-space allotted to adver-
58 Daniel Attas
tising may also bave tbe effect of reducing audience saturation-point and, bence, making tbe standard of reasonableness required less stringent.
One last point. Advertising is a voluntary practice on tbe part of tbe advertiser, initialised by bim and carefully designed to promote bis interests. It is on tbe otber band only semi- voluntary from tbe consumer's point of viev^. And tbougb some of bis interests may be promoted, for example bis interest in receiving information about tbe availability of a product, its quality and price, this is only provided subject to its being to tbe advertiser's advantage. If we are to err in setting the standard of reasonable- ness, better to be overprotective towards the consumer than too permissive towards the adver- tiser.
Notes
' One notable exception is Carson et al. (1985). By contrast, Beauchamp (1984) deals with the issue of manipulative, i.e. deliberately deceptive, advertising (see especially pp. 13, 18). Such a practise is only part of what is covered by the legal notion of deceptive advertising as I proceed to explain. ^ Gardner (1975, p. 42), Jacoby and Small (1975, p. 66), Carson et al. (1985, p. 96), Jackson (1990, p. 56). ' Another respect in which deceit differs from lying is suggested by Jennifer Jackson (1990, p. 53). A lie is a communication, whereas deception needn't be. If I am eavesdropping on a conversation you are conducting and you, aware of this fact, deliberately say something to mislead me, I am deceived but not lied to since you were not communicating to me. Since advertising is evidently an act of communica- tion, I can safely ignore this difference, confining the discussion to the context of advertising. '' This is the term preferred by the Food and Drug Administration (FDA). See Jacoby and Small (1975, p. 66).
^ I shall henceforth use the more common term 'deceptive advertising' and the literally more precise 'misleading advertising' interchangeably. '' It might be objected that though misleading advertising isn't intentional by defmition, in practice, however, it is intentional in all but the odd rare case. I do not deny this, but I think that since the defmi- tion of misleading advertising removes intention, its moral assessment ought not rely on its presence.
' See Jacoby and Hoyer (1982, pp. 24-25). ^ O n the prevalence and high degree of miscom- prehension of televised communications see Jacoby and Hoyer (1982). These writers conclude from their study of this phenomenon that "no communication is immune from being miscomprehended". (Ibid., p. 21) ' For a study of the pervasive use of syntactic and stylistic errors in advertising see Wyckham et al. (1984). '" Carson et al. (1985, p. 96), Jacoby and Small (1975, p. 66). " It is sometimes claimed that the percentage of consumers likely to be misled that counts as signifi- cant or substantial is inversely proportional to the degree of injury likely to occur. Thus, if grave physical injury could result, a lower percentage of misled consumers would count as substantial than would in the case of minor monetary loss. (See: Ford and Calfee, 1986, p. 89) If two logically analogous statements are misleading in the same way, the dif- ferent effects of acting on these pieces of (mis)infor- mation makes no difference to the misleadingness of the respective advertisements. Greater injury may be a reason for extracting higher compensation or for inflicting severe punishment, but it does not make the ad any more misleading. '̂ Carson et al. (1985, p. 99). '̂ This is the claim defended by Jacoby and Szybillo (1995) concerning FTC v. Kraft (1991). '"* The FTC deception statement confusedly linked materiality with injury saying on the one hand that when a claim is material 'injury is likely as well', and on the other hand that "injury and materiality are different names for the same concept" (FTC, 1983, p. 694, cited in Ford and Calfee, 1986, p. 90). Minority statements and later elaboration and clari- fication by FTC chairman have dissociated the two concepts and emphasised that injury is not a condi- tion of deceptive advertising. For a discussion of this issue see: Ford and Calfee (1986, pp. 89-92). ' ' Carson et al (1985, p. 99). '* Akerlof's market for 'lemons' (1984, pp. \5S) iden- tifies dishonesty as the grounds for unfairness. This enables him to draw the conclusion that competitors are harmed and not merely suffer losses. As far as our discussion of deceptive advertising is concerned dis- honesty cannot be the appropriate grounds since we are examining the legal, intention-free, notion of DA. " Similarly the notion that the consumer who buys an equivalent commodity at a higher price is thereby harmed can be rejected. If buying a more expensive commodity due to more legitimate (non-deceptive)
What's Wrong with "Deceptive" Advertising? 59
advertising doesn't harm the consumer, why does deceptive advertising do so? " Cf. Hill (1991: 31), Christman (1988, p. 110). " As explained in section IV above, this possible harm is not the basis for our moral evaluation of misleading advertising. On the contrary: it is only because we believe that misleading advertising has a moral basis for its condemnation, that we also believe that individuals are harmed by it and are therefore entitled to compensation. '" See Paine (1984, pp. 135-136) and Brenkert (1984, p. 152). '̂ It follows that materiality and injury are relevant
neither to the misleadingness of an advertisement nor to the moral reasons for its prohibition. If immaterial or non-harmful, but nevertheless misleading, claims are prevalent, this would make consumers suspicious of other material and possibly harmful claims and bring about the same effect on the erosion of trust.
References
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Beauchamp T. L.: 1984, 'Manipulative Advertising', Business & Professional Ethics Journal 3, 1-22.
Brenkert, G. G.: 1984, 'Commentary on "Children as Consumers'", Business & Professional Ethics Journal 3, 147-153.
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Hebrew University of Jerusalem, School of Business Administration,
Mount Scopus, Jerusalem 91905,
Israel.