If you don’t know, technically, in the US, you cannot lie in a commercial.
According to the Federal Trade Commission Act:
- Advertising must be truthful and non-deceptive;
- Advertisers must have evidence to back up their claims; and
- Advertisements cannot be unfair.
Additional laws apply to ads for specialized products like consumer leases, credit, 900 telephone numbers, and products sold through mail order or telephone sales. And every state has consumer protection laws that govern ads running in that state.
The FTCA defines “deceptive advertising” as any ad that:
- Is likely to mislead consumers acting reasonably under the circumstances; and
- Is “material” – that is, important to a consumer’s decision to buy or use the product.
You can see the full relevant text from the FTCA here.
So how does this apply to 5-hour energy?
5-Hour Energy has this commercial they’ve been airing since the Superbowl back in February. You can see it here.
It’s actually quite brilliant. It follows the FTCA regulations on advertising almost perfectly, using nothing but the facts and complete truth, yet still basically manages to be a big fat lie. It’s brilliant.
So let’s look at what they’re saying:
Two surveys were conducted to determine the opinions of primary care physicians regarding energy supplements and 5-hour ENERGY: 1) an online survey of 503 participants; and 2) an in-person survey by 5-hour ENERGY representatives of 2,500 participants (50% of those approached). In both, participants agreed to review materials regarding 5-hour ENERGY consisting of its label and a basic description of its ingredients. Of the 503 online and 2,500 in-person, over 73% said they would recommend a low calorie energy supplement to their healthy patients who use energy supplements.
Of the 73% of primary care physicians who would recommend a low calorie energy supplement to their healthy patients who use energy supplements, 56% would specifically recommend
5-hour ENERGY for their healthy patients who use energy supplements. Of all primary care physicians surveyed,
47% would specifically recommend 5-hour ENERGY
for their healthy patients who use energy supplements.
See? The words themselves are quite honest. Only 47% actually recommended 5-hour energy to their healthy patients already taking energy supplements.
And here is the first real piece of deception, in that it restricts it to a very specific set of people: these doctors would only recommend 5-hour energy to their healthy patients already taking energy supplements. If you’re healthy but not taking energy supplements, or you’re not healthy, then 0% of doctors would recommend an energy supplement at all.
Of course, you’d have to go their website to read this. The actual advertisement is even worse:
Over 73% said they would recommend a low-calorie energy supplement to their healthy patients who use energy supplements.
That is the main thrust of the commercial.
Now, at first glance, it looks perfectly fine, doesn’t it?
But read it again. It assumes that most people watching the ad will make a very specific connection. It says that 73% of doctors would “recommend a low-calorie energy supplement”. The connection it wants the viewer to make (and most will), is that 73% of doctors recommend 5-Hour Energy specifically. But, in fact, that isn’t the case. Only 47% would recommend 5-Hour Energy.
They say this, yes… in the fine print. It’s not mentioned in the actual ad at all. And most people simply are not going to read the fine print. The people at 5-Hour Energy know this, and they rely on it.
This makes the commercial a very effective example of using the truth to deceive. They follow all the rules of the FTCA exactly, dotting all their i’s and crossing all their t’s… and yet they still manage to deceive the average viewer while doing it.
For me, it’s just more proof that the FTCA simply isn’t restrictive enough. I don’t think 5-Hour Energy should be able to get away with the “fine print” trick. I think they should have to be openly honest up front.
As much as I hate the way people over-amplify the described side-effects in medicine commercials, I like that they’re there… the information is handy. But it also proves that most people don’t do research. They don’t understand what the word “rare” means in the phrase “and, in rare cases, death”, and so they hear that and think the medicine isn’t worth it, even if the medicine actually is (I could be wrong, but I’m, pretty sure that, in most cases, the word “rare” means it actually hasn’t happened in anyone who’s taken the medication; it’s just a very remote possibility based on the ingredients in the pill… it’s possible that death might not ever occur in anyone taking the medication… it still has to be listed, however).
And I don’t buy the whole “caveat emptor” idea that free-market lovers like to push. I, as the buyer, should not have to beware. The companies advertising their products and services should have to inform me of what I want to know up front, without me having to ask. Commercials, like the one above for 5-Hour Energy, simply shouldn’t have the ability to be that deceptive, even if they are following the current FTCA restrictions. The restrictions on commercials and advertising should be a hell of a lot stricter then they are.