The Legal Versus the Behavioral Meaning of Deception

Citation:

James E. Haefner (1972) ,"The Legal Versus the Behavioral Meaning of Deception", in SV - Proceedings of the Third Annual Conference of the Association for Consumer Research, eds. M. Venkatesan, Chicago, IL : Association for Consumer Research, Pages: 356-360.

Proceedings of the Third Annual Conference of the Association for Consumer Research, 1972      Pages 356-360

THE LEGAL VERSUS THE BEHAVIORAL MEANING OF DECEPTION

James E. Haefner, University of Illinois

[This paper is based on the author's dissertation, "The Perception of Deception in Television Advertising, An Exploratory Investigation." For more complete information on this paper, please write the author at the Department of Advertising, University of Illinois.]

INTRODUCTION

The legal meaning of deception has been developed through numerous Federal Trade Commission and court decisions. For the most part, these decisions have not relied upon consumer evidence. In some instances, this appears to be a justifiable position. A claim that the product "Is Made of Cotton" (when it in fact is not) is so obvious that consumer testimony would not be useful. Claims dealing with technical features of a product ("Brand X Tire will last 30,000 miles under normal driving conditions," or "X Air Conditioner completely cleans the air of all dust and foreign particles") would also not require consumer data as only careful laboratory tests could determine their truthfulness.

There are other situations, however, where consumer data is needed. Direct evidence is needed when the interpretation advanced depends on specific assumptions about consumer behavior. Without this direct evidence, the legal meaning of deception must be suspect.

The "doctrine of tendency to deceive" has been used by the FTC and the courts to exclude consumer evidence whether specific assumptions about consumer behavior are needed or not (Kinter, 1971). This doctrine states that actual consumer deception need not be proven, only the tendency to deceive need exist. In order to prove that a tendency to deceive exists in an ad, the FTC has substituted other types of evidence for consumer data.

One method used by the Commission to replace consumer evidence is called the hunch, or intuitive, approach (the Commission knows from past experience and expertise how consumers will interpret advertising messages) (Gellhorn, 1969, p. 564). in example will help to point out its weakness. In FTC v. Mary Carter Paint Co., [382 U.S. 46 (1965).] Mary Carter was selling paint for $6.98 a gallon with a second gallon free. This promotion pricing strategy was used by the company because it felt that if it would sell its paint below the price of other national competitors, consumers, who judge the quality of paint by its price, would view their product as inferior. The Commission determined that this offer was deceptive because it implied that the price used was the usual and customary one for the single article. This conclusion is not obvious and calls for direct customer evidence. [Development in Law--Deceptive Advertising. Harvard Law Review, 1967, 80, p. 1076.]

Another approach used in place of consumer testimony utilizes dictionary definitions (Gellhorn, 1969, p. 565). Again an example will point out its weakness. The fact that rejuvenescence means "a renewing of youth" tells little about whether consumers would give that same meaning to a word in an advertisement for a cosmetic called "Rejuvenescence Cream." [Developments in Law--Deceptive Advertising, p. 1077.]

A third method used to replace consumer data utilizes trade experts (Gellhorn, 1969, p. 565). Trade experts are called to the witness stand in order to relate their interpretation of what consumers perceive an ad or claim to mean. These experts may have a sophisticated view on the subject, but they do not necessarily have any expertise or information about actual consumer behavior concerning the issue in question.

The replacement of consumer data with these other approaches has lead to the following legal meaning of deception: [CCH Trade Regulation Reports. Washington, DC.: Commerce Clearing House, Inc., 1971, para. 7530. The complete definition of deception as well as all court citations are provided.]

An act or practice or representation is a "deceptive" act or practice, which Section 5 of the Federal Trade Commission Act prohibits, if it has the "capacity" or "tendency" to deceive. [FTC v. Hires Turner Glass Co., CCH || 7530 (CA-3; 1935) 1932-1939 TRADE CASES || 55, 083, 11 F.2d 362 (FTC Dkt. 1985).] Actual deception need not be proved or found. [FTC v. Balme, CCH || 7530 (CA-2; 1928) 23 F.2d 615 (FTC Dkt. 764).]

In determining whether a representation is deceptive, its effect upon the "ordinary" purchaser, the "public" or the "average" man is considered. [John C. Winston, Co. v. FTC, CCH || 7530 (CCA-3; 1925) 3 F. 2d 961(FTC Dkt. 1060.] This may include "the ignorant, the unthinking and the credulous" [Aronberg t. a. Positive Products Co. v. FTC, CCH || 7530 (CCA-7; 1942) 1940-1943 TRADE CASES || 56, 324, 182 F.2d 165(FTC Dkt. 3856).] and "the least sophisticated." [Exposition Press, Inc. v. FTC, CCH || 7530 (CA-2; 1961) 1961 TRADE CASES || 70. 146. 295 F.2d 869 (FTC Dkt. 7489).] However, it does not include a "very stupid person" [John C. Winston Co. v. FTC, CCH || 7530 (CCA-3; 1925) 3 F.2d 961 (FTC Dkt. 1060)] or "an insignificant and unrepresentative" [Dkt. 8538, CCH || 7530 (CA-9; 1964) 1964 TRADE CASES || 71, 278, 337 F.2d 751.] segment of the public.

In determining whether a representation is deceptive, the entire representation is taken in consideration [Ford Motor Co. v. FTC, CCH || 7530 (CCA-6; 1941) 1940-1943 TRADE CASES || 56, 132, 120 F.2d 175 (FTC Dkt. 3005).]--the entire advertisement. If a word or term is ambiguous and one meaning is false, the word or term is held to be deceptive. [Dkt. 8601, CCH || 7530.]

Not only what is said, but what is not said may constitute a deceptive act. [Gelb v. FTC, 144 F.2d 580, 583 (2d Cir. 1944).] Representations which are too broad to be true in all circumstances must be qualified.

An act which may be deceptive to ultimate consumers or the general public is unlawful even though the immediate customer is not deceived. [FTC v. Winsted Hosiery Co., CCH || 7530 (U.S. Sup. Ct. 1922) 258 U.S. 483 (FTC Dkt. 214)]

Although the above legal definition may have meaning for the adjudication process, it possesses no meaning in a behavioral sense. Since the FTC and the courts are dealing with a behavioral construct, that of deception, it is necessary to interpret this construct from the consumer's point of view.

In sum, the exclusion of consumer data and its replacement with evidence based on the hunch, the dictionary definition, or the trade-expert cannot yield an accurate meaning of deception. Deception is something that is perceived by the consumer, and it is only he who can give it meaning.

PROCEDURE

In order to investigate the behavioral meaning of deception, a study was made wherein two groups of subjects were recruited, adults and students. The sample consisted of ninety-six adults from the Minneapolis-St. Paul areas as well as one-hundred-seventy-eight students from the School of Business Administration at the University of Minnesota.

Each group of subjects was exposed to a series of television commercials which were unofficially rated for deception by four judges at the FTC. The ads submitted for review consisted of pairs of ads, each pair for the same product, with each member of the pair being a different ad. Pairs of ads utilized as stimulus material had to meet two criteria: (1) that at least three out of four judges agreed that one member of a pair was deceptive while the other ad was non-deceptive; and (2) at least three out of four judges agreed that no additional information was needed from the company to make a final judgment. Five pairs of ads met these criteria; in addition two control ads (one deceptive and one non-deceptive) in which at least three out of the four judges agreed were also selected.

Two reels of films were prepared (seven ads per reel); each reel contained either the non-deceptive or the deceptive version of the five experimental pairs of ads, as well as the non-deceptive and deceptive control ads. The two control ads were placed first, followed by the five experimental ads. The sequencing of ads for each reel was deceptive, non-deceptive, deceptive, nondeceptive, etc.

Subjects were randomly divided into two groups with one group seeing one reel of film while the other group saw the other reel. Both groups saw the same control ads which were utilized to determine if the groups perception of deception was comparable.

After viewing an ad, the subjects were asked to complete a checklist instrument. This instrument contained 49 dichotomous items reflecting the feelings of a large sample of consumers to a variety of advertisements (Bauer & Greyser, 1968). The checklist items were selected to be content free (apply to any ad), and included positive, negative, neutral, and ambivalent statements about the ad. A check made by a statement indicated that it reflected a subject's feelings about an ad. A large number of statements were included so as to insure that a respondent could reflect any particular feeling he had about an ad.

A series of phi inter-correlation matrices was developed for the checklist items within the adult and student samples and also within pairs of ads for each product category. This procedure yielded five inter-correlation matrices for each sample, or a total of ten. Each correlation matrix was tested to determine if it was significantly different from an identity matrix before the factor analyses were conducted (Weiss, 1970). All matrices were significant at the .001 level

The principle factor method of factor analysis was utilized to analyze the ten phi inter-correlation matrices. The results of the factor analysis were then rotated, using the varimax orthogonal technique in order to gain better interpretability of the factors.

RESULTS

An average of eight factors emerged in each of the ten factor analyses with approximately 88 percent of the common variance being explained by each analysis.

The major factors that appeared across student and adult samples were (1) enjoyment, (2) deception, (3) monotony, (4) information, (5) dislike, and (6) brand loyalty. The enjoyment factor dealt primarily with statements that indicated the presentation of the ad was well received. The deception dimension contained statements such as, "The ad was misleading," or that the claims made were unbelievable. The monotony factor contained statements concerning the sameness of the ad as compared with other ads. The informative dimension had statements such as, "It told me how to use the product," and "The ad told about new product uses," that loaded highly on it. The dislike factor included a variety of statements, such as "it was boring," or "it was annoying," and "it was poorly written or performed." Finally, the brand loyalty dimension had two basic sets of statements loading on it: one set indicated that the brand was previously used and liked; while the other set contained positive statements about the product, such as "it was informative."

The "pure" factors were not always found, however. The basic factors tended to mix or combine with one another yielding new factors, such as an enjoyment-information factor, and an intelligence-monotony factor.

The deception factor was no different. Instead of clearly defined deception factors, a deception-intelligence, a deception-annoyance, and a deception-offensive factor emerged. The data indicated that the deception construct was not always unidimensional in nature as the legal meaning of deception implied.

IMPLICATIONS

The data from the study pose an important question. If a commercial insults a person's intelligence or annoys him, does this automatically lead an individual to perceive an ad as deceptive? In other words, does an individual view an ad as insulting to the intelligence and then make a deception judgment without ever attempting to make an independent evaluation of ad content? If this is so, it presents some serious problems for any consumer data that might be introduced into a deception case. The results of such data could not be meaningful unless the intelligence, annoyance, or offensiveness of an ad were controlled.

REFERENCES

Bauer, R. & Greyser, S. Advertising in America: The Consumer View.

Boston: Division of Research, Harvard University, 1968, pp. 197-235.

Gellhorn, E. Proof of Consumer Deception Before the Federal Trade Commission. Kansas Law Review, 1969, 17.

Kinter, E. W. A Primer on the Law of Deceptive Practices. New York: The Macmillan Company, 1971, pp. 31-34.

Weiss, D. Factor Analysis and Counseling Research. Journal of Counseling Psychology, 1970, 17, pp. 477-485.

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