Legalmatter

By: Brian J. Meli

The spot was called “Hill Climb,” but it thrust Nissan Motor Company and TBWA Worldwide into full reverse when the Federal Trade Commission (FTC) declared it deceptive and charged both the Japanese automaker and its advertising agency with violating federal consumer protection laws.

Naming TBWA as a party in its complaint was a significant move by the FTC, because it sent a clear message that the commission will continue to hold advertising agencies equally responsible for facilitating false or misleading claims when they know or should know that these claims contain material misrepresentations.

Why was this particular spot, which portrays a Nissan Frontier pickup truck racing up a precipitous sand dune to rescue a buggy, singled out in a competitive category loaded with sensational and over-the-top messaging?

The reason, according to the FTC, was that the sand dune stunt sequence in “Hill Climb” was considered a deceptive demonstration of the Nissan Frontier’s technical capabilities. Product demonstrations, experiments and tests, especially ones focused on a material quality or feature of an advertised product, are viewed with a higher degree of scrutiny than other types of advertising because of their inherent ability to mislead. And in this case, two primary factors led the FTC to conclude that this was a material product demonstration.

The first was the spot’s underlying message, delivered unequivocally by the voiceover: “The mid-size Nissan Frontier with full-size horsepower and torque. Innovation for doers. Innovation for all.’’ In light of the obvious emphasis on these two specific product attributes—horsepower and torque—the stunt can essentially be viewed as an implied claim that those attributes enabled the truck to perform as depicted. A claim that is not only unsubstantiated, but completely untrue.

The second issue the FTC noted in its complaint was the realistic depiction of the stunt, which was portrayed home video style, as if shot in impromptu fashion with a camera phone. In the opinion of the FTC, this technique could lead a reasonable consumer to conclude that what they are watching is an accurate representation of the actual performance of an unaltered Nissan Frontier under similar conditions. That would be an incorrect conclusion however, since according to the FTCs complaint both the Nissan Frontier pickup truck and the dune buggy it’s shown assisting were actually dragged to the top of the hill by cables. Furthermore, the sand dune itself was altered to appear much steeper in the finished spot than it actually was.

The disclaimer in the ad, which if you blink you’ll miss: “Fictionalization. Do no attempt” was not considered adequate to overcome the misrepresentation because not only was it neither clear, nor conspicuous, but there remains some question as to what “fictionalization” actually means. And in any event, it was viewed more as a safety warning than an express acknowledgment that the stunt viewers were watching was in fact completely staged.

While both Nissan and TBWA reached settlements with the FTC, receiving what amounts to an official warning, both company’s are now on notice that they will be watched very closely going forward. TBWA is required by its consent order to immediately hand over upon request any video shot or still images taken during the production of any advertising depicting similar demonstrations, experiments or tests. The agency is also required to provide all current and, for the next five years, future account directors and creative directors with direct and supervisory or managerial responsibilities on the Nissan account with a copy of the order, and they must sign and date a statement acknowledging they received it.

While this may seem to some like nothing more than a logistical headache, there’s no question that operating under the continual threat of future government sanctions doesn’t exactly make for an environment hospitable to breakthrough creative. No account director or brand manager wants to be the one on whose watch a federal order is violated; so more often than not the unfortunate result is a culture of defensive advertising and creative second-guessing. And in the long run that can be just as crippling to a brand, and to an agency, as heavy fines.

Whether you agree with the FTC’s findings or not, the “Hill Climb” complaint can be instructive. Advertisers should always be asking themselves if what they’re depicting on screen could be interpreted as a demonstration, experiment or test. If there’s even a small chance it could be, they must have substantiation ready to support the veracity of that demonstration. If a spot is intended to exaggerate or overstate a product’s capabilities, then great care must be taken to ensure that this is clear. Conspicuous, unambiguous disclaimers must be incorporated into the ad. And perhaps most importantly, if material product or service attributes are going to be the subject of an exaggeration that could be construed as a demonstration, even if it is “fictionalized,” the exaggeration should be well outside the boundaries of what a reasonable consumer might consider possible.

The content of this blog is intended for informational purposes only. The information provided in this blog is not intended to and does not constitute legal advice, and your use of this blog does not create an attorney-client relationship between you and The Law Firm of Brian J. Meli. Under the rules of certain jurisdictions, the material included in this blog may constitute attorney advertising. Prior results do not guarantee a similar outcome. Every case is different and the results obtained in your case may be different.