Also known as: false advertising · deceptive advertising · false or deceptive advertising · misleading advertising · unfair advertising
Written by attorneys · grounded in primary & secondary sources — see below
Commercial speech containing false or misleading representations about goods or services. Such speech receives no First Amendment protection and exposes the speaker to tort liability, regulatory discipline, or injunction.
Attorney Faye Fuller runs a television ad depicting herself dramatically addressing a jury in a trial setting. In reality Fuller has never tried a case to verdict before a jury. A disciplinary board finds the visual creates a false impression of her experience and imposes sanctions.
Lexmark advertises that only its own cartridges work with its printers and warns that third-party chips will damage machines. Static Control, a component maker, proves the statements are false. Static Control recovers damages under the Lanham Act for the misleading advertising.
Select any source to read its text and confirm it supports the definition.
A state board bans pharmacists from advertising prescription drug prices. Consumer groups challenge the ban. The Court holds that truthful commercial speech about lawful prices is protected and the prohibition violates the First Amendment.
Massachusetts requires tobacco ads to be placed at least five feet above floor level near schools. Tobacco companies challenge the height and location rules. The Court strikes down the restrictions as overly broad limits on truthful commercial speech.
Rhode Island prohibits all advertising of liquor prices. Liquor stores challenge the total ban. The Court holds that the prohibition on truthful price information fails the Central Hudson test and violates the First Amendment.
An Ohio attorney runs newspaper ads offering contingent-fee representation in personal-injury cases but omits required disclosures about client costs. The disciplinary board sanctions the lawyer. The Court upholds the disclosure requirement as a permissible regulation of commercial speech.
No. False and deceptive commercial speech is categorically unprotected by the First Amendment because it does not contribute to the marketplace of ideas or the commercial marketplace.
Supporting sources
A party harmed by justifiable reliance on a public misrepresentation about product safety or quality may recover for resulting physical injury under strict liability. Injunctive relief is also available even when constitutional speech concerns are present.
Supporting sources
Yes. A marketplace that repeats a seller's safety claims in its own promotional materials can be strictly liable for physical harm caused by consumer reliance, regardless of the marketplace's own negligence or good-faith belief in the statements.
Supporting sources
…but only as concerned partisan political matters. We have long recognized the power of the Federal Trade Commission to regulate misleading advertising and labeling, see, e. g. , Jacob Siegel Co. v. FTC , 327 U. S. 608 (1946), and the National Labor Relations Board's power to regulate an employer's election-related speech on the basis…