Law Commons^™

Picture [Im]Perfect: Photoshop Redefining Beauty In Cosmetic Advertisements, Giving False Advertising A Run For The Money, Ashley R. Brown

Ashley R Brown

This paper discusses the use of Photoshop in the United States and when overly retouched ads cross the threshold into False Advertising. I consider opinions from the NAD and whether or not a "Photoshop Law" would ever be feasible in the United States.

Sorting Out The Green From The Greenwash, Matthew Rimmer

Matthew Rimmer

Greenwashing is corporate spin which involves making misleading or deceptive claims that a company’s products or services are environmentally sustainable or friendly.The problem of greenwashing requires a robust, integrated approach to law reform to discourage the practice that makes it harder for legitimate voices to be heard.The consultancy group, TerraChoice, had identified seven sins of greenwashing – including claims involving hidden trade-offs; lack of proof; vagueness; false labelling; irrelevant claims; false comparisons; and false statements. Such conduct is putting consumers at a disadvantage and giving some businesses an unfair advantage in a market increasingly concerned about the environment and climate …

The Emotion Of Disgust, Demand Augmentation, And Wasteful Consumption, Nathan H. Ostrander

Nathan H. Ostrander

Conventional economic theory assumes that producers supply goods and services in a responsive, reactive way to innate, genuine, and unmanipulated consumer demand. Evidence increasingly suggests, however, that demand is constructed based on the elements present in any given situation, and that the situation is subject to corporate influence. One method by which corporations construct demand is by using the emotion of disgust to create an apparent problem in an advertisement. Corporations reference the emotion of disgust not only because it is incredibly powerful, but also because advertisements are able to quickly alleviate the disgusting problem and thereby increase consumer receptivity …

The Emotion Of Disgust, Demand Augmentation, And Wasteful Consumption, Nathan H. Ostrander

Nathan H. Ostrander

Conventional economic theory assumes that producers supply goods and services in a responsive, reactive way to innate, genuine, unmanipulated consumer demand. Evidence increasingly suggests, however, that demand is constructed based on the elements present in any given situation, and that the situation is subject to corporate influence. One method by which corporations construct demand is by using the emotion of disgust to create an apparent problem in an advertisement. Corporations reference the emotion of disgust not only because it is incredibly powerful, but also because advertisements are able to quickly alleviate the disgusting problem and thereby increase consumer receptivity to …

Bavarian Blondes Don't Need A Visa: A Comparative Law Analysis Of Ambush Marketing, Gerlinde Berger-Walliser, Melanie S. Williams, Bjorn Walliser, Mark Bender

Melanie S. Williams

This paper describes the problem of ambush marketing: the act of attempting to associate with an event without buying the rights to do so. From the perspective of the organizers and sponsors of large-scale media and athletic events, the problem is significant. More than $100 billion is spent annually on purchasing sponsorship rights and the associated promotions. For companies who have not paid for such rights to be able to imply an association with these high-profile events dilutes the value of that sponsorship. Despite the size of the problem, however, (and except for the special coverage many countries afford Olympic …

Mutual Fund Performance Advertising: Inherently And Materially Misleading?, Ahmed E. Taha, Alan Palmiter

Ahmed E Taha

Mutual fund companies routinely advertise the past returns of their strong-performing, actively-managed equity funds. These performance advertisements imply that the advertised high past returns are likely to continue. Indeed, investors flock to these funds despite high past returns being a poor predictor of high future returns. Thus, fund performance advertising is inherently and materially misleading and violates federal securities antifraud standards. In addition, the SEC-mandated warning in these advertisements that “past performance does not guarantee future results” fails to temper investors’ focus on past returns.

The SEC should do more to prevent investors from being misled by fund performance advertisements. …

Ambush Marketing: Dissecting The Discourse, Brian Pelanda

Brian Pelanda

This article discusses the problematic discourse in which scholars and corporate complainants such as the International Olympic Committee have discussed the issue of ambush marketing. It argues that those who persistently complain about ambush marketing have wielded the term far too liberally, and thus a great deal of confusion exists between the generally accepted definition of ambush marketing and the reality of the circumstances surrounding the numerous marketing strategies that the term is commonly used to describe. While much of the current literature on the subject concludes that the existing state of the law in the United States is not …

Running The Gamut From A To B: Federal Trademark And False Advertising Law, Rebecca Tushnet

Rebecca Tushnet

The Lanham Act bars both trademark infringement and false advertising, in nearly identical and often overlapping language. In some circumstances, courts have interpreted the two provisions in the same way, but in other areas there has been significant doctrinal divergence, often to the detriment of the law. This Article argues that each branch of the Lanham Act has important lessons to offer the other. Courts should rationalize their treatment of implied claims, whether of sponsorship or of other facts; they should impose a materiality requirement, such that the only unlawful claims are those that actually matter to consumers, to trademark …

Ambush Marketing - ¿Qué Es Éste Fenómeno?, Jose R. Trigueros

Jose R. Trigueros

“El ambush marketing es una práctica relativamente inexplorada en México, sin embargo, no es factible considerarla como una práctica nueva, ya que a nivel internacional ha generado infinidad de reacciones, estudios, casos prácticos y legislación enfocada a intentar combatir sus efectos. Este estudio tiene como propósito introducir, definir, identificar y establecer estrategias de defensa y prevención en contra de una práctica sofisticada, inteligente y dañina para la industria del deporte.”

Punishing Pharmaceutical Companies For Unlawful Promotion Of Approved Drugs: Why The False Claims Act Is The Wrong Rx, Vicki W. Girard

Vicki W Girard

This article criticizes the shift in focus from correction and compliance to punishment of pharmaceutical companies allegedly violating the Food, Drug, & Cosmetic Act (FD&C Act) prohibitions on unlawful drug promotion. Traditionally, the Food and Drug Administration (FDA) has addressed unlawful promotional activities under the misbranding and new drug provisions of the FD&C Act. Recently though, the Justice Department (DOJ) has expanded the purview of the False Claims Act to include the same allegedly unlawful behavior on the theory that unlawful promotion “induces” physicians to prescribe drugs that result in the filing of false claims for reimbursement. Unchecked and unchallenged, …

Against Freedom Of Commercial Expression, Tamara R. Piety

Tamara R. Piety

No abstract provided.

Google's Law, Greg Lastowka

Greg Lastowka

Google has become, for the majority of Americans, the index of choice for online information. Through dynamically generated results pages keyed to a near-infinite variety of search terms, Google steers our thoughts and our learning online. It tells us what words mean, what things look like, where to buy things, and who and what is most important to us. Google’s control over “results” constitutes an awesome ability to set the course of human knowledge. As this paper will explain, fortunes are won and lost based on Google’s results pages, including the fortunes of Google itself. Because Google’s results are so …

The Best Puffery Article Ever, David A. Hoffman

David A Hoffman

This Article provides the first extensive legal treatment of an important defense in the law of fraud and contracts: puffery. Legal authorities commonly say they make decisions about whether defendants should be able to utter exaggerated, optimistic, lies based on assumptions about buyer behavior, concluding that consumers do not rely on such speech. However, as the Article shows, such analyses are proxies for a deeper analytical question: does the speech encourage or discourage a type of consumption activity that the court deems welfare maximizing? The Article presents a novel constitutional analysis of puffery doctrine that focuses on the meaning of …