“False Advertising” happens all the time. What Can You Do About It?
Scenario 1: You open the mailbox. Tucked in with all the junk mail you see a great offer: a discount on something you’ve been wanting for months, available only for a limited time. You go to the store to buy the advertised special. But you get there, and the price advertised isn’t what is being charged.
Scenario 2: An online retailer’s website lists a color printer at $199. You buy it. 4 days later, the package arrives in the mail, and you open it only to find that the printer is a black and white printer.
Scenario 3: Autotrader.com has a truck listed for $16,990. You go to the dealership and when you sign the paperwork, you realize that the real price has been jacked up to $18,500.
Scenario 4: You take the family out to dinner at “The Red Crawfish,” where you order a fillet of red snapper. But it doesn’t taste like snapper. In fact, the underside of the fillet has some small black scales. Turns out, you’ve been served mullet instead.
All these scenarios have something obvious in common: they involve false advertising. False advertising can come in many forms, and new ones are invented every day, it seems. The reasons are obvious: businesses will do almost anything to get you to buy their products. And while some exaggeration is harmless and expected, are merchants allowed to lie about the products they sell? Absolutely not. And if they do, then they can be taken to court and held responsible.
Like most states, Alabama has a specific statute prohibiting false advertising: the Alabama Deceptive Trade Practices Act, or “ADTPA,” as we lawyers call it.
The ADTPA, which can be found at Ala. Code Title 8, Section 19, contains a list of specific prohibitions. Here are a few:
- “Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services.”
- “Causing confusion or misunderstanding as to the affiliation, connection, or association with, or certification by another.”
- “Using deceptive representations or designations of geographic origin in connection with goods or services.”
- “Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.”
- “Advertising goods or services with intent not to sell them as advertised.”
- “Disparaging the goods, services, or business of another by false or misleading representation of fact.”
- “Making a false or misleading statement of fact concerning the reasons for, existence of, or amounts of, price reductions.”
- “Engaging in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce.”
Translated to normal English, here are some examples of what the Alabama Deceptive Trade Practices Act means:
- They can’t say a product is “Made in the USA” if in fact most of it was made elsewhere.
- If you sell Grade A Angus Beef, then you can’t serve Grade B Beef, or Grade A Pork/Beef Mix, or Grade A Beef made from any cow other than an Angus. It must be Grade A, and Angus, and Beef.
- You cannot advertise that your product has a 2 year warranty if you only provide a 1 year warranty.
- They cannot put “red snapper” on the menu if what they sell people is something other than a Lutjanus campechanus (a.k.a. Red Snapper).
- They can sell “Grouper” even if the grouper comes from Madagascar.
- If a label says “Certified Organic,” then the food must be organic and certified.
- If a restaurant brags that it was “Voted Best Hamburgers in Alabama,” then it must have some good reason for saying that.
- If a price is advertised as “25% Off,” then the non-discounted price should be 33% higher than the “discount” price. (Because (3/4 of A) x 4/3 = A).
The Alabama Deceptive Trade Practices Act also forbids false advertising of services in many instances. For example:
- If a debt settlement company claims it can cut your debt by 50%, and you pay them to do so, but they don’t perform, then they’re false advertising.
- If a credit repair service claims to be able to boost your score by 100 points, then they better be able to do it.
- A car finance company or dealer who says that “If you have a job and $500, you can get a new car!” must have new cars that they are actually willing to sell to anyone who has a job and $500.
How to Prepare A False Advertising Case
There are a few things you need to cover before you rush to a lawyer’s office, though.
First, you must get proof of the actual advertised terms.
If advertisements are written, then they are usually allowed to have footnotes and fine print that “explain” the terms they are advertising. You must obtain a copy or printout of any written, TV, or internet advertisement. Read the whole thing. Make sure you paid attention to it before you went to buy the advertised product. If a “disclaimer” or “Explanation” was hidden, it may not have any legal effect.
Oral or radio advertisements may have a similar explanation at some point during the advertisement. If you have been cheated or scammed by a radio advertisement, you need to listen for the advertisement that fooled you and record it.
Second, you must show that you bought the falsely advertised product or service.
This is pretty easy. If you have a receipt, bill of sale, credit card statement, or any other record of your purchase, then you can show that you were in fact the victim of the false advertising.
If you’ve been cheated by false advertising, it is important to take action quickly. The Alabama Deceptive Trade Practices Act only has a 1 year statute of limitations, which means that you have 1 year to take them to court once you’ve discovered (or should have discovered) the false advertising. Furthermore, you have to write a letter demanding compensation at least 15 days before you sue them.
The content of this letter should be drafted with the assistance of a consumer protection attorney, because if not drafted properly, it will not have legal effect.