Barney was an enterprising businessman who could probably sell fleas to a dog. What he chose to sell, however, was an “invisible” swimmin aid that was merely an inflatable wrap-around that prevented a swimmer from sinking. And, he promoted it as the greatest thing in water since Ester Williams...a 1940s-1950s movie star who spent most of her time in the water. It was the use of the word “invisible,” however, that got him into trouble with the Federal Trade Commission. He was charged with using false and deceptive advertising.
“Your wrap-around is no more invisible than the Statue of Liberty,” the FTC told him
“I agree,” responded Barney, “because nothing is ‘invisible.’ By using the word 'invisible,’ I was merely trying to convey the notion that my wrap-around is inconspicuous. I wasn’t trying to sell The Emperor’s New Clothes. I wasn’t trying to deceive anyone.”
IF YOU WERE THE JUDGE, would you find Barney guilty of false and deceptive advertising?
This now the Judge ruled: No!
The judge held that while the Federal Trade Commission has a duty to protect gullible people from being deceived, an advertiser cannot be held liable for a statement which is not likely to be taken literally. After all, noted the judge, there are some people who believe all Danish pastry comes from Denmark.
(Based upon a 1963 FTC Decision)
Jack Strauss, a retired New York City trial attorney who now resides in Berea, wrote a syndicated column for 36 years called, “What’s the Law?” It appeared in papers coast to coast, including the Pittsburgh Press, the Los Angeles Examiner, the Hartford Times, the Kansas City Star and the Philadelphia Daily News, among many others. It appears here with his permission.