We’re all familiar with the classic product demonstrations in television commercials: who hasn’t seen re-enactments of the super-absorbent paper towel, or the dish detergent that cuts through grease with a single drop?
How do we define a demonstration? Well, a demonstration is just that: a way for advertisers to show the product functioning as it actually would, as objective “proof” of performance. As such, it is especially important that demonstrations actually consist of a true and accurate portrayal of the product. When the FTC began bringing enforcement actions concerning advertising demonstrations in 1959, it encountered cases where products or props had been doctored, enhanced or replaced to achieve the desired performance, and the advertiser had not disclosed any modification. Even if the product claim itself was not false, the issue was that the demonstration was false. For example, in the early 1990s, Volvo ran an advertisement which showed a monster truck crushing other cars, except for a Volvo station wagon, in order to show that Volvo vehicles would provide superior safety in a collision. However, the commercial was produced by weakening the competitor vehicles’ roofs and reinforcing the Volvo’s roof, and then subjecting the Volvo to less severe crushing by the truck – none of which was disclosed to consumers. Subsequently, the FTC issued a consent order requiring Volvo to stop depicting demonstrations that involved undisclosed mock-ups or material alterations to products.
So, how have advertisers adapted to the law of demonstrations as it currently exists? Clear disclosures are key: advertisers can include appropriate text on-screen if a demonstration is ‘simulated’ or ‘reenacted,’ or includes components not standard with purchase of the product (for example, a commercial in which a four wheel drive car powers through the snow might include the disclaimer that the car depicted includes “optional studded snow tires.”) The law surrounding demonstrations will become only more important as digital production techniques and computer-generated imagery become more pervasive in the industry: now more than ever, advertisers can show product performance through advanced, realistic, and cost-effective simulations. Under current FTC law, advertisers using such techniques will still need to disclose them; however, as we move into a new age of demonstration law, with a more sophisticated consumer base growing accustomed to outlandish simulations, advertisers will have to continue thinking creatively in order to safeguard themselves.