Legally, misleading and deceptive advertising is based on a ‘reasonable person’ test. I consider on whether that is sensible on the Conversation.
In brief, including ‘fine print’ in advertising is a choice that a business makes. No-one forces a business to hide the true terms and conditions in fine print. Rather a business chooses to do so – presumably because this makes its advertising campaign more effective.
Maybe this is driven by consumer attention being ‘caught’ by a misleading headline.
Perhaps it is because the misleading advertisement misleads a group of people who then buy the product. These buyers may not satisfy the legal test of a “hypothetical ordinary or reasonable member of the class to whom the advertisements were directed”. But they are still misled.
It is difficult to imagine a situation where a business ‘mistakenly’ misleads customers by fine print and this:
- Could not have been predicted in advance; and
- The risk could not have been avoided by the business redesigning the advertisement.
Moving to a stronger legal test for liability for misleading and deceptive advertising might make advertisements more boring. But it can also make markets work better.