In the advertising world, we know that deception lies in the eyes of the beholder. Agencies like the Federal Trade Commission (FTC), or self-regulatory bodies like the National Advertising Division (NAD), legally stand in the shoes of the consumer, in the absence of consumer perception studies. In private litigation, however, the question of consumer perception ‒ whether consumers are actually mislead by an advertising claim ‒ is at the heart of many false advertising cases, and the role of consumer perception studies is different. In the case of lawsuits by individuals attacking advertising and labeling claims, a recent ruling in California’s “food court” suggests that consumer perception studies likely will be necessary to demonstrate that consumers were actually mislead by claims on food labels.
While the proliferation of false advertising claims targeting the food industry in California makes this decision especially important for food companies, the notion that consumer perception studies are necessary to support a false advertising claim has broader relevance to advertisers, regardless of their industry sector. Click here for an update from the Keller and Heckman Food Litigation team.