John McCall, “Deceptive Advertising”
1. TYPES OF DECEPTION
a. Unintentional deception:
i. E.g.: "Old Frothingslosh: “The beer with the foam on the bottom"
ii. Any cases where no intent to deceive and advertiser morally responsible for consumer being misled?
(1) McCall suggests yes
iii. Where false impression was a reasonably foreseeable (predictable) result: No intention to deceive, but was predictable that consumers got false ideas (
(1) E.g., Nordstrom’s ½ yearly sale--not ½ price
(2) Economy size (has a higher unit price)
iv. In creation of ad no intent to deceive, but consumers unpredictably misread ad and are deceived by it and advertiser continues to use same add
(1) Now it counts as intentional deception.
(2) E.g.? Bought sunlight dishwashing detergent thinking it was lemon juice because it showed a picture of a lemon on bottle
(3) E.g., Aquafina
b. Intentional deception
i. Lying: "Intentional utterance of a falsehood with intent to deceive”
(1) Counterexample? Congenital liar, knows won't succeed but lies anyway?
(2) Why intent to deceive necessary for lying?
(a) Because some utterances of intentional falsehoods not lies
(b) Jokes, fiction, puffery (e.g., we serve ice cream cones that are a mile high)
(3) Examples of ads/marketing that lie: (Weight of bike pedals)
ii. Intentional deception without lying (see below)
2. WHEN AND WHY INTENTIONAL DECEPTION IS WRONG
3. Why intentional deception (presumptively) wrong?
a. Attempts to manipulate a person by undermining the capacity for reasoned choice (by getting person to believe false things)
b. Attacks person's autonomy (self-governance and control over lives):
i. Makes free, reasoned choice impossible by manipulating person’s decision by getting him/her to act on false beliefs
c. Disrespectful to a person and unfair; a violation of a person’s rights.
4. All societies have rules against deception (universal norm)
a. Business not possible--nor any ongoing cooperative activities--w/o presumption against deception
b. Essential for social life: If no more reason to expect the truth than falsehood, not clear why you would talk with other people
5. Societies can tolerate well defined areas of deception:
a. Is advertising one of these areas?
6. Intentional deception and lying is not always wrong:
a. Is advertising one such example of permissible intentional deception?
7. Three conditions under which intentional deception/lying is acceptable
a. To prevent significant harm (to save a life or prevent a greater violation of autonomy, inquiring murders)
i. Doesn't apply to advertisers
b. Harmless deceit: No unfair advantage sought (E.g., You look nice today)
i. Doesn't apply to advertisers:
ii. Deception in ads typically calculated to create unfair advantage for the advertiser against consumers and competitors;
iii. When consumer buys one brand because deceived into thinking better both consumer and competitor harmed
c. Where all parties involved know deception is likely and expect it (or they ought to); (E.g., Poker, labor negotiations, sports)
i. Even in these cases only narrow limited types of intentional deception allowed (can’t agree in labor negotiation and then renege)
8. Do intentionally deceptive ads belong in this third category of morally acceptable deception (as all know and expect deception)?
a. All involved expect or ought to expect deception in ads?
9. McCall's two arguments against this:
a. Consumers are regularly tricked by deceptive ads and marketing techniques
i. FTC study 20-25% of consumers misled by intentionally deceptive ad practices
ii. Therefore, unlikely that consumers expect deception (given so frequently deceived)
iii. Reply: Can expect deception and still be successfully tricked
iv. True, still McCall doesn't believe that consumers generally expect to be deceived in ads and marketing practices
b. Conceptually and psychologically impossible to expect deception in infinite number of ways it is possible in ads
i. Deception to be expected has to be in a well defined area
ii. Expecting deception everywhere, would lead to paralysis of decision making
c. Therefore, ads not a case of deception everyone expects
10. Another argument for why intentionally deceptive ads not fit appropriately into third category (an argument McCall does not consider)
a. For deception to be morally acceptable it is not enough that all involved parties are expecting it, rather they must agree to it
b. Consumers and competitors don't agree to intentional deception in ads and marketing
11. Argument that consumer is at fault for intentionally deceptive scheme because she should have been more vigilant?
a. Caveat Emptor: Let buyer beware
b. McCall's response: If intent to deceive present, it is still wrong, even if true consumer should have been more vigilant.
i. E.g., Used car salesperson turns back odometer (buyer should have checked this out)
ii. Intentional deception is presumptively wrong (even if the person deceived also bears some responsibility)
iii. Does this mean advertiser is only partially morally responsible and the overly trusting consumer is also partly morally responsible for her deception?
12. INTENTIONAL DECEPTION THAT DOES NOT INVOLVE LYING: WAYS ADS INTENTIONALLY DECEIVE W/O OUTRIGHT LIES
a. This is the most common sort of intentional deception in advertising: Rarely do advertisers outright lie
13. Visuals intentionally used to mislead:
i. Arizona fancy condos with lush green trees and golf courses,
ii. Chunky soup with marbles
iii. Bottled water from a city water system that has pictures of mountains on it
14. Linguistic: True statements that are uttered with intention to deceive
a. Ambiguity or hope consumer takes the misleading implication
i. E.g., Cholesterol free potato chips
ii. E.g., Eggs from chickens that are “not caged”
b. Give full and accurate information but still intend to deceive
i. Putting the full information in fine print almost impossible to read
c. Intentional omissions of pertinent information:
i. Difficult questions:
(1) What information are they required to provide?
(2) Wrong to hide major flaws/drawbacks;
(3) But too much to require everything relevant to consumer’s judgment (such as weaknesses relative to competitors)
ii. Paper topic on this issue?
iii. See Michael Pollan on “Processed foods are not that healthy” on class webpage
15. McCall concludes: Advertisers have a moral obligation to reject any techniques where trying to mislead (by statement, implication, omission, or visual image)