The Relationship of Miscomprehension to Deceptiveness in Ftc Cases

Ivan L. Preston, University of Wisconsin,
Jef I. Richards, University of Wisconsin [Professor of Advertising and Ph.D. candidate, School of Journalism and Mass Communication, U.W., Madison, 53706.]
ABSTRACT - Jacoby, Hoyer and Sheluga have interpreted their findings on miscomprehension as implying that much of what government regulators identify as advertising deceptiveness should properly be recognized only as normal levels of miscomprehension. An analysis is offered which questions this interpretation, for two reasons. The first reason is that the Jacoby group omitted studying one of the significant types of deceptiveness prosecuted by the FTC. The second is that, for the type of deceptiveness the researchers did study, the concept of "induced miscomprehension" suggests it is reasonable to interpret miscomprehension as evidence of deceptiveness.
[ to cite ]:
Ivan L. Preston, University of Wisconsin and Jef I. Richards (1986) ,"The Relationship of Miscomprehension to Deceptiveness in Ftc Cases", in NA - Advances in Consumer Research Volume 13, eds. Richard J. Lutz, Provo, UT : Association for Consumer Research, Pages: 138-142.

Advances in Consumer Research Volume 13, 1986      Pages 138-142


Ivan L. Preston, University of Wisconsin

Jef I. Richards, University of Wisconsin [Professor of Advertising and Ph.D. candidate, School of Journalism and Mass Communication, U.W., Madison, 53706.]


Jacoby, Hoyer and Sheluga have interpreted their findings on miscomprehension as implying that much of what government regulators identify as advertising deceptiveness should properly be recognized only as normal levels of miscomprehension. An analysis is offered which questions this interpretation, for two reasons. The first reason is that the Jacoby group omitted studying one of the significant types of deceptiveness prosecuted by the FTC. The second is that, for the type of deceptiveness the researchers did study, the concept of "induced miscomprehension" suggests it is reasonable to interpret miscomprehension as evidence of deceptiveness.


This is an assessment of the work of Jacoby, Hoyer & Sheluga (1980; Jacoby & Hoyer, 1982a, 1982b) on the topic of miscomprehension of message content. While other assessments of this work (Ford and Yalch 1982; Mizerski 1982) have focussed on methodological matters, this one focusses on the legal applicability of the findings for their intended use as evidence pertaining to deceptiveness in Federal Trade Commission advertising cases.

The Jacoby work was funded by the Educational Foundation of the American Association of Advertising Agencies, whose notice inviting research proposals explained how the work was to be applied to the deceptiveness topic: "In the past few years various-regulatory bodies have charged certain advertisers with having produced 'misleading' advertising. Regulators have interpreted fairly modest levels of consumers misperception as evidence that a particular advertisement is 'misleading.' This may simply reflect the difficulty in distinguishing between deception and small levels of misperception which may be inherent in the process of mass communications" (A.A.A.A. 1978).

The immediate goal of the Jacoby et al. project was "to provide objective evidence of the extent and nature of consumers' perceptions and misperceptions of various forms of communication, including advertising" (with comment appended that "as the study developed 'misperception' was more properly defined as 'miscomprehension'") (Bartos 1980).

The principal result of the project was the finding that a substantial amount of miscomprehension by consumers occurred. An implication of this finding was stated to be that "just because there is a demonstrable degree of miscomprehension associated with a particular advertisement does not necessarily mean that the particular advertising contains something out of the ordinary to provoke said miscomprehension...[because]...a certain proportion of miscomprehension may simply reflect a natural error rate associated with all types of televised communication" (Jacoby et al. 1980, p. 97). Further, "the authors... would find completely unreasonable any attempt to use 'zero-based miscomprehension' as the criterion for evaluating advertising" (p. 98).

Although little more is stated explicitly, certain additional conclusions can reasonably be drawn as to what the researchers and their sponsors meant to communicate about the relationship of miscomprehension to deceptiveness.

There appears to have been an underlying assumption that government regulators investigate advertising by measuring consumer miscomprehension of it, and then prosecute advertisers on the belief that such demonstration of miscomprehension amounts to a demonstration of deceptiveness.

Contrarily Jacoby et al. urge the belief that miscomprehension, because it occurs in response to all advertising and indeed to all mass communication, should not be interpreted as evidence of deceptiveness. It represents only the natural tendency of human beings to have a certain level of error in their processing of message content, a phenomenon that should be attributable only to the consumer and not to the advertiser.

Only when the observed level of error exceeds the base level of miscomprehension should deceptiveness properly be assumed to exist. Should people typically err in 30% of instances, which is the average figure the researchers observed, then deceptiveness should properly be attributed only to messages for which the observed miscomprehension figure is higher than 30%. If the figure were say, 40%, then only the last 10% could be defined as deceptiveness. This would mean that a great many ads would have no deceptiveness at all, and that the 40% ad would have attributed to it only 10% deceptiveness rather than the full 40%.

Examination of FTC cases gives little reason to accept the A.A.A.A. assumption, st least for recent years, that the FTC frequently prosecutes advertisers on the basis of very small amounts of deception. The present authors, however, forego arguments based on such matter, in order to take up the issue of the theoretical relationship between the concepts of miscomprehension and deceptiveness.


We turn to assessing the arguments made by Jacoby et al. about what the occurrence of miscomprehension properly tells us about the occurrence of deceptiveness. The first step is to compare the two phenomena conceptually and empirically. The Jacoby report does not examine deceptiveness empirically, and by standing moot on this topic it may have the capacity to imply a closer relationship between deceptiveness and miscomprehension than is actually the case.

The report does discuss deceptiveness conceptually (p. 40), along with the concept of misleadingness as attributed to the FDA. The present discussion chooses to focus on deceptiveness, because the role of the FDA with respect to advertising is negligible compared to that of the FTC. In any event, there is not nearly so much difference between the two concepts as the report implies. The authors hold that deceptiveness involves a deliberate attempt to produce a false belief, while misleadingness does not necessarily do so (p. 40). Actually, neither do; it is fully established in advertising law that violations may be found in the absence of any evidence of intention to deceive (Preston 1976). Further, deceptiveness and misleadingness are not so clearly the province of separate federal agencies as the authors imply. Rather, the FTC's legislation prohibits misleading as well as deceptive advertising; its practice has been to use the terns interchangeable for conceptual purposes (Preston 1976).

Turning to measurement procedures, although the Jacoby report acknowledges a difference between miscomprehension and deceptiveness (p. 40), it does not discuss the latter enough that the differences as well as similarities may be fully seen. Both concepts involve the understanding about the advertised object that has been conveyed to the consumer. To assess miscomprehension, this conveyed meaning is identified as being the same as, or different from, the literal message about the object. If the conveyed meaning is different from that stated or logically implied in the ad, miscomprehension exists.

To assess deceptiveness, the FTC first determines the conveyed meaning about the advertised object. It then examines the facts about that object, and finds deceptiveness to occur when the conveyed meaning is false with respect to those facts. Deceptiveness is a function of that relationship without regard for whether the literal advertising message is true or false.

The difference, then, is that the miscomprehension researcher is concerned with whether the conveyed meaning accurately reflects the literal message, without concern for the facts, whereas the FTC is concerned with whether the conveyed meaning accurately reflects the facts, without concern for the literal message. Assuming properly that the literal message's truth with respect to the facts is independent of the conveyed statement's truth the relationship between deceptiveness and miscomprehension is as shown in Figure 1.



The number of combinations of truth and falsity is five rather than four because when both literal and conveyed message are false they may involve the same or different falsities. Miscomprehension is shown where the conveyed message is discrepant from the literal message, and deceptiveness is shown where the conveyed meaning is false.

The most important result found in Figure l is that miscomprehension and deceptiveness are independent of each other. Although the Jacoby group recognized this (p. 40), they failed to incorporate the range of outcomes needed to fully demonstrate this phenomenon. They examined only two of the five possible outcomes, Columns A and B in Figure l, those two being the ones where deceptiveness and miscomprehension are correlated. Such a limitation does not permit the independence of the two concepts to be recognized.

The limitation occurred through the researchers' decision to "accept as given (but not objectively demonstrated) that each of our ads provides a correct representation of Product X" (p. 35). Thus, in their work the literal message was never false. Consequently, they assessed the truth of the conveyed message only by comparing it to the literal message. This was really a measure of correspondence or noncorrespondence of the conveyed message to the literal message, but the researchers referred to it as truth or falsity.

If the conveyed message corresponded to the literal message, either explicitly or by logical relationship, then it was assumed to be true. And, because the literal message was assumed to be true with respect to the facts, the conveyed message therefore must be true with respect to the facts. Under such conditions, both comprehension and nondeceptiveness existed simultaneously.

If the conveyed message failed to correspond to the literal message, then it was assumed to be false with respect to both the literal message and to the facts, and under such conditions both miscomprehension and deceptiveness occurred simultaneously.

It is not surprising that the researchers so equated miscomprehension and deceptiveness, given their enabling assumption. Such assumption, however, is simply wrong.

The literal message may of course be false with respect to the facts. And the FTC certainly is prone to consider prosecutions in such instances.

How often has the literal message been found by the FTC to be false? The present authors analyzed its cases in eight most recent published volumes (FTC 1980-83). The fifty relevant cases contained 330 instances in which a charge of a false conveyed message was made on the basis of a literal statement in an ad. In 164 of these cases the conveyed message was the same as the literal statement, which means that the literal statement was charged by the FTC to be false. In 166 instances the conveyed statement was found to be implied by a literal statement, which means not precisely that the literal statement was found to be true, but rather that it was not challenged as false and therefore was conceded for legal purposes to be not false. If we assume that the unchallenged literal statements were in fact true, the results show that the 330 statements were divided almost exactly evenly between true and false. The Jacoby researchers thus failed to incorporate into their design a type of advertising message reflecting half of the volume of actual FTC activity.

Summing up our assessment to this point, the argument has been made that the Jacoby project failed to study the full range of relationships between deceptiveness and miscomprehension. This criticism does not in itself, of course, amount to a refutation of the suggestion that miscomprehension may in some cases (i.e., Column 8 in Figure l) be properly interpreted as the equivalent of deceptiveness. We turn nov to a direct assessment of that topic.


The present authors offer no disagreement with the Jacoby researchers' assertion that the FTC has in many important cases sought to determine deceptiveness by utilizing empirical data that can be interpreted as measuring miscomprehension. The real issue lies elsewhere, as will be seen.

There are two kinds of deceptiveness, and the Jacoby group is quite right in associating one of them with miscomprehension. The kind of deceptiveness found in Columns C and D of Figure l is based on the literal message. It may be accompanied by miscomprehension (as in Col. D), but the deceptiveness is independent of the miscomprehension. In most such cases the FTC uses no empirical data, asserting a capacity to deceive simply from the message's falsity.

The deceptiveness indicated in Col. B is based on miscomprehension. In most cases the commission makes no empirical determination of such deceptiveness, and when it does it typically uses different kinds of measures from case to case. However, there was one instance (Sun Oil 1974) of an FTC measurement of deceptiveness that was extremely like the Jacoby group's measurement of miscomprehension.

That particular measurement and the Jacoby measurement have a common forebear, the work of Preston & Scharbach (1971). The latter determined what meaning an advertisement conveyed to consumers by having experimental subjects respond to a number of prepared statements about that ad's content. The prepared statements might be directly true or false in the sense that they would directly express either some content found in the ad about the product or else the opposite of such content. Other prepared statements expressed things about the product that were either logically implied by what the ad literally stated, or else were illogically implied to anyone who responded on the basis of common logical fallacies. Finally a fifth kind of statement said something about the product that was irrelevant to anything the ad had said; it had none of the four previously specified relationships. Five statements, one of each kind, were used for each ad.

The subjects were asked to specify by checkmark whether each statement was an "accurate" or "inaccurate" restatement or paraphrase of what the ad stated or implied. The instructions emphasized that a specification of "accurate" did not require that the exact words be used, but only that the same meaning be conveyed. Accordingly, subjects would be answering correctly if they specified "accurate" for the statements that were either true or logically implied or "inaccurate" for those that were false, illogically implied or irrelevant.

The Jacoby measurement of miscomprehension was reported to be "patterned after Preston and Scharbach" (p. 53). Alterations included the use of only the first four of the five types of statements, and for each ad or other type of communication the use of two each of the false (called "inaccurate fact") and the illogically implied (called "inaccurate inference") statements, making a total of six. The instructions required the subjects to indicate whether each statement was "true" or "false," and this was to be based upon what they felt was both stated or implied in the communication (p. 53). Because of the latter qualification, "true" and "false" probably had the same meaning as did "accurate" and "inaccurate" as used by Preston and Scharbach.

In the Sun Oil case the conveyed meanings challenged as false were not the literal advertising statements; the latter thus were conceded to be true, and so were of the sort studied in the Jacoby project. In the case, Preston supported his testimony on conveyance of meanings by introducing a survey that used three of the five types of statements seen in Preston and Scharbach, along with the same instructions. Of eleven prepared statements three were true, two were false, and five were illogically implied. The latter five had been alleged by the FTC to be conveyed to the public and to be false. By shoving a strong tendency to indicate that these statements were accurate references when in fact they were inaccurate, the experimental subjects confirmed the FTC in its decision that such content was indeed conveyed by the advertising.

Accordingly, a shoving of what the Jacoby report calls miscomprehension was used by the FTC as evidence of deceptiveness. The specific process was that of miscomprehending by drawing invalid implicationsCthat is, by committing common fallacies through drawing conclusions not justified by proper application of logical analysis (Preston 1967; Preston & Scharbach 1971).

The Jacoby report stresses the point that the cause of miscomprehension is in the consumer and thus not in the advertiser. Miscomprehension is shown to occur in approximately equal degrees across a variety of communications. Nonadvertising sources would presumably have no interest in creating deceptiveness, yet their communications produce the same rate of miscomprehension. Therefore, it appears reasonable to argue that normal levels of miscomprehension may be attributed generally to the recipient of the message rather than to the source.

We have now arrived at the real issue--not whether the observed phenomenon is miscomprehension, but whether miscomprehension should be recognized as deceptiveness. The Jacoby researchers (and presumably their AAAA sponsors) say it should not because to label the phenomenon miscomprehension is to conclude that it is created by the consumer and not by the advertiser. Thus it cannot be deceptiveness and the advertiser should not be prohibited from producing it.

The FTC, although not having commented specifically on the term as used by the Jacoby group, says in effect that miscomprehension often amounts to deceptiveness and so in such instances should be prohibited.

No doubt many observers will consider lt unconscionable as a matter of public policy for the government to attack, place blame on, and restrict the activities of an advertiser who has not been proved to be the party responsible for the conveyed message. The legal position on this point, however, is the longstanding principle that messages harmful to consumers should be subject to prohibition regardless of the advertiser's intent to produce them.

The advertiser has created a message that has the capacity to deceive; that is enough. The goal of the law is elimination of harm, and lack of intent to harm is irrelevant if harm is created. Further, intent is usually impossible to prove, thus to impose such a requirement would mean that virtually no harm would be eliminated (Preston 1975).

Furthermore, the advertiser is not being prosecuted. The attack, and the prohibition, technically are made against the message alone, not against the advertiser. The message must cease; the advertiser is not punished. The criminal las which the FTC legislation supplanted allowed for sanctions against persons, but the civil law under which the Commission was created does not (FTC Act 1914).

The outcome of this analysis is that the Jacoby report has not revealed anything that the FTC doesn't already assume. The advertiser should not be punished for causing what is not his fault; the FTC knows that. Miscomprehension is not necessarily the fault of the advertiser in the sense of conscious intent; the FTC knows that. Miscomprehension occurs and is interpreted as constituting deceptiveness; the FTC knows that, too. The Jacoby report simply does not supply anything that technically makes any difference.


Let us turn, however, to consider the impact the Jacoby report might make, despite the technicalities just discussed, on the basis of the simple common sense it exudes. The report raises issues of fairness toward which many observers will be sympathetic. And there appears to be a way in which the FTC might be influenced by such issues.

The approach would be to raise the issue of an advertiser's apparent lack of intent to deceive, not as a legal technicality but rather as a factor that might influence the FTC to dismiss a case for not being of sufficient public interest. In cases, for example, where the commission is straddling the fence on the question of whether a false conveyed message posed a sufficient threat of harm to the public, the realization that the advertiser was believed not to have intended any deception (along with, perhaps, a clean record on such matters in the past) might turn the tide in favor of dismissing. In its recent statement regarding its advertising substantiation program (FTC 1983), the Commission cited competing demands on the Commission's resources" as a reason why it might sometimes "decline to initiate a law enforcement proceeding." Perhaps in a parallel way it might also decline where an advertiser could reasonably be thought to have no intent to deceive.

Before we assume that possibility, however, some comment is offered on the Jacoby group's apparent assumption that any consumer response recognized as miscomprehension should also be recognized as involving no intent to deceive. In Preston (1967) the possibility was raised that consumers' inaccurate perception of at claims might favor the advertisers by enabling them to convey claims they could not state explicitly without risking prosecution. This suggests that advertisers might look favorably on the possibility of such miscomprehension occurring, because it would enable them in apparent innocence to convey messages deliberately that they otherwise could not get into the consumer's head. "We can't say it," an advertiser might observe, "but we can get our readers to think itCant that's what matters!"

An example given in Preston (1967) was that Bayer would have been unable to say truthfully that doctors recommend for colds and flu that people should l) Rest in bed; 2) Drink fluids; and 3) Take Bayer aspirin. The Bayer ad had made a statement that was the same except for excluding the word "Bayer." Twenty-six out of 30 subjects showed miscomprehension by indicating that the test statement, worded as above with "Bayer" included, was an "accurate expression of what the ad had stated.

The Jacoby report expresses, at least implicitly, the opinion that miscomprehension is uniformly bad and that all parties wish to eliminate it. It is not difficult, however, to appreciate that Bayer might not have wanted to eliminate a miscomprehension that would result in attributing a strong claim to its product. Nor is it difficult o imagine that the creators of the Bayer advertising light have been fully aware of how the phenomenon would operate. The Preston study was based on common logical fallacies, and the very concept of "fallacy" implies the realization that many people predictably will commit it.

What this analysis suggests, then, is a phenomenon that sight be called "induced miscomprehension." It is miscomprehension that the message creator predicts will happen, and knows will produce a favorable result, and therefore utilizes deliberately. If it states something falsely about the product, then it will amount to deceiving in the way that the Jacoby report interprets that term as involving intent. Certainly it will dispel the notion that miscomprehension is always unintended and innocent.

Preston (1967) included some evidence on the difference that "induced miscomprehension" might make. The overall rate of miscomprehension in his study was 29.2%, remarkably similar to that of the Jacoby research. It is possible by additional unreported analysis, however, to measure the miscomprehension rate separately for those test statements that would be favorable to the advertised product if properly comprehended and those that would be favorable only if miscomprehended.

The statements that were "true," "false," and "logically implied" would be favorable to the advertiser if properly comprehended. The "illogically implied" statements, called "inaccurate inferences" by Jacoby, would be favorable to the advertiser if miscomprehended. The independent statements, made up out of thin air and thus having no logical relationship to the ad content, were sometimes favorable to the advertiser but typically were neutral.

The reanalysis, eliminating the independent statements, shows that where accurate comprehension of the test statement would be favorable to the advertiser, the rate of miscomprehension was only 20%, well below the average. Where the miscomprehension of the test statement would be favorable to the advertiser, the rate of miscomprehension was 65%, very much above the average. The reason suggested was that consumers expect ads to say favorable things, and expect them not to say unfavorable things. The outcome certainly suggests that advertisers can benefit from miscomprehension and so could have an interest in inducing its occurrence.

A similar result occurred in the Sun Oil case. None of the representations alleged by the FTC to be conveyed and to be false were stated explicitly in the advertising; they could only have been conveyed by false implication and thus by miscomprehension. Several of the prepared test statements reflected these alleged representations, although other statements were included for masking purposes. For the three statements for which miscomprehension would be unfavorable to the advertiser, the miscomprehension rate was 12%. For the eight statements for which miscomprehension would be favorable, the rate was 67%.

Clearly miscomprehension occurred more to the advertiser's advantage than detriment in consumer response to the Sun Oil ads. and it was that miscomprehension that was interpreted as constituting a violation. E[ad the miscomprehension rate for the group of eight statements, most of which paraphrased the misrepresentations alleged in the complaint, been as low as for the group of three statements, the findings would have constituted far less support for the finding of a violation.

The Preston (1967) and the Sun Oil data provided comparison points by measuring miscomprehension under differing conditions, favorable or unfavorable to the advertiser. This suggests that a benchmark can be identified for determining how much "induced miscomprehension" occurs over and above the occurrence of the miscomprehension that may be innocent. The Jacoby report stated that a zero-based assessment of miscomprehension would be unacceptable (p. 98). Had the FTC in Sun Oil considered such an argument, it might also have considered that the 12% miscomprehension rate found in the survey data could serve as a base for evaluating the 67% rate (and the same for the 20% and 65% rates in the Preston (1967) data). The result obviously would be that the challenged conveyed meanings would demonstrate amounts of miscomprehension well above the baseline.

We have been discussing the possibility that the omnipresence of miscomprehension might sway the FTC into dropping some prosecutions of deceptiveness for a lack of public interest. The analysis, however, suggests that this would be unlikely to happen unless the possibility of induced miscomprehension was ruled out. Induced miscomprehension can occur in cases where the false message is conveyed by implication, and data cited earlier suggests that this happened in half of the FTC's recent charges (see also Preston (1977) for analysis of cases in earlier years). We are not suggesting that the FTC is likely to make charges of, or collect data concerning, the concept of induced miscomprehension. The point is only that the perceived possibility of induced miscomprehension makes it unlikely that the FTC will accept the Jacoby report's urging that evidence of miscomprehension should be interpreted as implying the nonexistence of deceptiveness.


A debt is owed to the Jacoby group for observing that what the FTC calls deceptiveness often occurs through the process of consumer miscomprehension. Nothing in this paper is intended to deny that advertisers may sometimes have been held responsible for misunderstandings for which consumers more reasonably ought to be held responsible. What is needed is the more precise specification of those situations under which the existence of miscomprehension may be held to imply the absence of deceptiveness.

A possible way to proceed would be to think in terms of defining the level of miscomprehension that cannot be eradicated. An advertiser's plea of not having intended to create a certain false impression could be vulnerable where the possibility exists of rewriting the message so that a more accurate impression will be conveyed. The advertiser, would be on firmer ground where he could argue that the message was written as clearly as humanly possible and that no alternative construction could possibly produce a lower level of miscomprehension. The latter advertiser would have a better case for claiming an exemption from the law's challenges.

Perhaps involved in such an analysis would be a distinction between miscomprehension of explicit and implied messages. More generally, there might be developed measures of the amounts of miscomprehension produced by structurally different types of messages. Certainly the Jacoby group will agree that more can be learned about miscomprehension as a follow up to their innovative introduction.


We have proposed two ways in which to question the notion that what is challenged as deceptiveness is actually only miscomprehension. The first involves instances in which the literal message of the advertisement was false, and for which miscomprehension and deceptiveness do not occur concomitantly. The Jacoby research did not study such situations and therefore cannot be regarded as having any pertinence to them. The second involves instances studied by Jacoby in which the literal message is true and in which deceptiveness and miscomprehension are either present or absent concomitantly. For these situations the phenomenon of induced miscomprehension has been offered as a reason why the FTC might choose to interpret evidence of miscomprehension as constituting evidence of deceptiveness.


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