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From the Serial Set: False Advertising

The following is a guest post by Elina Lee, a library technician (metadata) formally in the Law Library of Congress Digital Resources Division. Elina has previously written for In Custodia Legis on other items in the Serial Set such as NASA’s Project Mercury – A Significant Milestone and The History of the Minimum Wage

Advertising is marketing. One of the earliest forms of advertising was shouting in the market or word-of-mouth. Signs, flags, and business cards are also efficient methods for advertising products and services. A fundamental focus in regulating advertising is ensuring “truth in advertising.” This refers to prohibiting advertisements that use data or information that is not based on facts, or that induce or mislead consumers to make false judgments, whether based on facts or not.

To this end, in 1935, the Committee on Commerce considered a bill, S.5, to prevent false advertising regarding food, drink, drugs, and cosmetics (S. Rpt. 361, 74th Cong., 1st Sess., at 1 (1935) reprinted in Serial Set Vol. 9878). This bill was intended to extend the Federal Food and Drugs Act of June 30, 1906, (ch. 3915, 34 Stat. 768), known as the “Pure Food Law,” for which Dr. Harvey W. Wiley labored so long and valiantly.

According to section 601 of Senate report 361, this bill defined “the advertisement of a food, drug, device, or cosmetic as false if it is false or misleading in any particular relevant to the purposes of the bill regarding such food, drug, or cosmetic.” However, this bill did not become law.

Foods, Drugs, and Cosmetics. S. Rpt. No. 361, at 21-22 (1935), reprinted in Serial Set Vol. 9878.

A similar bill was reintroduced in the 75th Congress with the same number, S.5., in January 1937, which did become law. The issue of false advertising was given additional impetus when over 100 people died due to a new, untested sulfa drug that contained a highly toxic chemical analog of antifreeze. President Roosevelt signed the Federal Food, Drug, and Cosmetic Act on June 25, 1938, to prevent the reoccurrence of such an event. The law brought cosmetics and medical devices under the control of the government and required drugs to be labeled with adequate directions for safe use.

On August 6, 1958, in the second of a series of hearings on the extent and effectiveness of enforcement actions by federal agencies in the field of false and misleading advertising, the subcommittee concentrated its attention on claims in advertisements for weight-reducing remedies. The Committee on Government Operations had before it for consideration a subcommittee report entitled “False and Misleading Advertising (Weight Reducing Remedies).” After consideration of the report and upon motion made and seconded, the report was approved and adopted as the report of the full committee (H. Rpt. 2553, 85th Cong., 2nd Sess., at 1 (1957) reprinted in Serial Set Vol. 12081). This report was not on a bill but rather a report to the Committee of the Whole House on this issue.

False and Misleading Advertising (Weight Reducing Remedies). H. Rpt. 2553, 85th Cong., 2nd Sess., at 1 (1957) reprinted in Serial Set Vol. 12081. Photo by Elina Lee.

The report quoted veteran enforcement official, William C. O’Brien of the Post Office Department, as saying:

“Fat people want magic, simple, easy, comfortable means to lose weight and who can blame them? Every generation in my experience feels the same way. Each generation finds swindlers operating schemes to deceive and defraud them.” (H. Rpt. 2553)

H. Rpt. 2553, 85th Cong., 2nd Sess., at 2 (1957) reprinted in Serial Set Vol. 12081. Photo by Elina Lee.

Advertising is deeply embedded in our culture. As advertising and marketing grow rapidly on the internet, consumers are potentially exposed to more misleading advertisements online. The Federal Trade Commission (FTC), the United States’ consumer protection and competition agency, enforces a variety of consumer protection laws and closely examines advertising claims that can affect consumers’ health or money. On tackling the issue of truth in advertising, they expound:

When consumers see or hear an advertisement, whether it’s on the Internet, radio or television, or anywhere else, federal law says that ad must be truthful, not misleading, and, when appropriate, backed by scientific evidence.

The FTC leverages its resources and targets its enforcement efforts at practices that cause the greatest harm to consumers.

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