IS DECEPTIVE ADVERTISING MORALLY WRONG?
I – STATEMENT OF THE PROBLEM
This age of consumerism and advanced technology has empowered advertising. Every time we gaze our eyes on the television, read our preferred magazines, tune in to our favorite radio station, surf the internet, or travel around the busy street of Metro Manila it seems impossible not to be bombarded by advertisements. Advertising has become the primary means of the people for the acquisition of information about the products or services that are available in the market. However, what if a certain advertisement deceives certain costumers aimed at enticing these customers to buy the deceptively advertised product or services? Shall we permit advertisers to use deceptive advertising because it is one strategy of business persons to increase their sale and maximize profit or shall we condemn the use of deceptive advertising because of some ethical violations?
Thus, the endeavor of this paper is to answer this question: Is deceptive advertising morally wrong?
For us to have a common understanding about the issue at hand, I deem to provide some understandings about deceptive advertisement.
CONCEPTUAL ANALYSIS OF THE MEANING OF DECEPTIVE ADVERTISING
First and foremost it is necessary to give a proper understanding about the term “deceptive advertising.” This given definition will serve as our guide of how the term “deceptive advertising” is understood in this paper. Perhaps, there’s no debate about the meaning of the term advertising here. I suppose that we will all agree in this definition that advertising means “the business of conceptualizing, presenting or making available to the public through any form of mass media, fact, data or information about the attributes, features, quality or availability of consumer products, services or credit” (Art. 4. Definition of Terms. The Consumer Act of the Philippines). However, the meaning of the term deception is something that has brought many disputes among many experts. That is why there is a need to clear the meaning of the term “deception.”
In order for us to have a proper understanding about the meaning of deception, it would be helpful to distinguish deception from lying (Carson, Wokuth and Cox, 1985). First differentiation that is given is that a lie is a deliberate false statement made orally, in writing or through some other use of language while deception need not involve any false statement or any other use of language (Carson, et. al, 1985). They gave an example to illustrate this difference: “My confident demeanor as I raise the pot in a game of poker may deceive you into thinking that I have a good hand, but it does not involve the making of any statement (whether true or false).” So their first conclusion is that not all cases of deception involve lying and vice versa (Carson et al, 1985).
Second differentiation is that lying only involves the attempt to deceive others. However, deception, unlike lying connotes success. An act must actually mislead someone if it is to count as a case of deception. If my bluff fails to deceive you then it cannot be described as a case of deception (Carson et al, 1985).
Roughly, the root word of the word deception which is ‘deceive’ is simply to cause another person to have false beliefs. However, it is argued that this definition does not suffice to cover all the cases of deception. One might cause another to have false beliefs in indirect ways that we would not be willing to allow access of deception (Carson et al, 1985). An example can be helpful to understand this view:
For example, by telling you about a sale at the local bookstore I might cause you to notice and purchase a book containing numerous false claims about the life of Elvis Presley that would believe. I will have indirectly caused you to believe such things as that Elvis practiced cannibalism, but it would not be correct to say that I deceived you. A perfectly clear and truthful statement is likely to be misinterpreted by inattentive listeners or readers but we don’t call it deceptive for that reason (Carson et al, 1985).
We might notice that what is lacking why the example above cannot be counted as a case of deception is that it lacks the intention from a person so that the other person will be led to have false beliefs. To address this, they suggested an improvised definition:
X deceives y if and only if intentionally causes y to have false beliefs (Carson et al, 1985).
This definition might be better from the rough definition that preceded it; however, it is argued that it is still inadequate. According to it, no matter how false or misleading an advertisement is, it cannot be considered as a case of deception provided that those who are responsible for producing it believe that it is true because in that case there is no intent to cause false beliefs. Moreover, if this definition were correct, then no advertiser would have no need to attempt to determine if a claim is in fact true in order to avoid deception (Carson et al, 1985). An illustration can help us to understand this view:
If an automobile dealer’s advertisement mistakenly claims that his model cars have the best safety record of any American-made car, the ad is deceptive, the dealer has committed an act of deception, even if he believes that it is true (Carson et al., 1985).
What is lacking again in this definition as implied in the example above is that it fails to consider that the moral culpability of a deceiver depends on whether or not the deceiver believes or not this claim and whether or not he made a good effort to verify it, but that is another matter. Hence, a final definition of deception is proposed:
x deceives y if and only if: x causes y to have certain false beliefs (b) and x intends or expects his actions to cause y to believe b (Carson et al, 1985).
Those who gave this conceptual analysis accepted that this definition is only an attempt to define what it is for an individual to deceive another. They admitted that a given act or (advertisement) might mislead some people but not others. They claim that this definition may not be adequate for legal purposes such as for a Federal Trade Commission (FTC) administrative law judge to make a decision whether an advertisement is deceptive or not. However, they argued that the definition they have given can and should be incorporated into guidelines for the regulation of advertising. They insist that any definition of deception in advertising must be based upon an understanding of what it means to deceive an individual (Carson e. al, 1985).
At best, they came up to this suggested definition of deceptive advertising:
An advertisement is said to be deceptive on account of its propensity to deceive or mislead individuals, and the intention or expectation on the part of the advertiser that it would do so. As we argued previously, intention is an issue that should be considered in important bases. For less important cases it might be considered sufficient to show that an advertiser expected (or should have expected) that a given percentage of people would be misled by the ad (Carson et al, 1985).
In this sense, I want to understand deceptive advertisement in this paper.
II- TEMPORARY ANSWER
I will argue in this paper that deceptive advertising is morally wrong given the assumption that it is morally wrong to harm others. In addition, people who practice deceptive advertising violate moral principles such as the Golden Rule and Kant’s Categorical Imperatives.
III – WHAT IS WRONG WITH DECEPTIVE ADVERTISING (Arguments for the moral wrongness of Deceptive Advertising)
Deceptive advertising is morally wrong for the following reasons:
1. Deceptive advertisement has the capability to harm people specifically the consumers, the competitors, and the social fabric as a whole.
2. Deceptive advertisement is morally wrong because those persons who practice it violate moral principles such as the Golden Rule and Kant’s categorical imperative.
Now let us discuss in depth the arguments for the moral wrongness of deceptive advertising.
Deceptive advertising can harm others financially
Deceptive advertising harms consumers by causing them to have false beliefs about the nature of the products advertised and thereby cause some consumers to make different purchasing decisions than they would have made otherwise. For example, deceptive claims about the features of a car might cause someone to purchase a car that is unsuitable for her needs. Consumers are harmed if deceptive advertising causes them to spend more money for a brand name product than a generic brand that works as well. If the products in question are inexpensive the harm to any given consumer is small, but the aggregate in question harm to the society as a whole can still be considerable. (Carson et al., 1985; Preston, 1994)
An example can elaborate this claim: Many consumers were harmed by ads for Sear’s Kenmore dishwasher that falsely claimed that it could completely clean dishes, pots and pans “without prior rinsing or scraping.” Since they acted on the basis of false claims purchased the Kenmore dishwasher presumably would have preferred not to purchase it had they not been deceived. Some people with perfectly good dishwashers purchased the Kenmore because they wanted a dishwasher that did not require any prior rinsing or scraping. These people wasted their money. The Sears ads were apparently successful, since the Kenmore dishwasher gained an increased market claim made by the ad was false. Test that Sears ran indicated that the dishwasher manual instructed people to rinse and scrape the dishes prior to putting them in the dishwasher! (Preston, 1994).
Deceptive advertising can harm people’s health
Deceptive advertising can harm people’s health. During the past 20 years, many foods such as stick margarine were advertised and prominently labeled as being low in cholesterol (and therefore healthy). Many consumers eat these products thinking that they are healthy for their hearts when, in fact, they are very high in saturated fat (All saturated fats pose a serious risk for heart disease). Cholesterol is saturated fat from animal sources. Saturated fats from non-animal sources, e.g., palm oil, contain no cholesterol, but they are just harmful as cholesterol. These facts are now widely known, but they were not commonly known twenty years ago. At least in the past, many people were misled (Carson, 2002).
A year ago, the world became witness to the harm that deceptive advertising can cause to many people. Some dairy and non-dairy products manufactured from China were found to contain residue of melamine, a chemical that is not included in the labeling of the said products. Melamine is a highly toxic chemical used in plastics. It is used to make dairy products look more attractive. Some people (especially innocent children) died and many people became sick by the mislabeling of the said dairy and non-dairy products.
Deceptive advertising can harm competitors
A person’s true interest are determined by the decisions she would make were she fully informed and rational – to the extent that an ad gives someone false beliefs about what s/he buying it has the potential to harm that person. To the extent that deceptive advertising succeeds and causes people to make purchases that they would not have made otherwise, it harms competing business (especially business that are honest in advertising) by reducing their sales (Carson, 2002). The example above about the Sean Kenmore dishwasher proves this claim. Instead of purchasing their perfectly used dishwasher, the customers were deceived by the false advertisement of the Sean Kenmore dishwasher and bought it instead of buying the products of their competitors. Thus, deceptive advertising harms (honest) competing business by reducing their supposed sales.
Another example might elaborate this view: Listerine Mouthwash was long advertised as strong (bad tasting) mouthwash “that kills millions of germs which can cause colds on contact.” Listerine kills germs, but germs don’t cause colds (colds are caused by viruses). These ads harmed many consumers. Many were led to spend more money for Listerine than they otherwise would have spent on mouthwash. Many who spent money on Listerine and endured its bad taste would not have used mouthwash at all (or as often) had they not been deceived by the ads. The ads also harmed Listerine’s competitors who lost market share (Carson, 2002).
Deceptive advertising can harm the society as a whole
Deceptive advertising is also harmful in that it lowers the general level of trust and truthfulness essential for a flourishing society and economy. The law alone cannot secure the level of honesty and trust in business necessary for people to be sufficiently willing to enter into mutually beneficial market transaction. In order for this to be the case, most people must voluntarily adhere to norms of honesty on moral grounds. No legal system can effectively police or deter rampant universal dishonesty in business. The legal system does not have the means to prosecute all business people. Consumer protection laws could not function effectively if all business practiced deception. If people were honest only because they feared getting caught the economy would soon cease to function (Carson, 2002). Sissela Bok (1979) also argues that, lying (and by extension, deception) lowers the general level of trust and truthfulness so essential to the proper functioning of the society and its economic system.
The arguments stated above accounting for the moral wrongness are based on the utilitarian consideration about the undesirable consequences of advertising, that is, harming the consumers, competitors and the society as a whole. We often view in our society and often undebatable that harming others (especially when others are not harming us) is prima facie wrong. Because deceptive advertising are harming the consumers, competitors and the social fabric as well, there is that strong presumption that deceptive advertising is morally wrong.
The next to argument for the moral wrongness of deceptive advertising is about the violation of the two moral principles through the use of deceptive advertisements.
Deceptive advertising violates the Golden Rule
Those who practice deceptive advertisement violate the Golden Rule. They, themselves are also consumers and are not willing to have others deceive them in the market place or base their own economic decisions on false beliefs. As advertisers, they want consumers to trust advertising and give credence to the claims of advertising. They cannot be willing to have all advertisers practice deception. If deception in advertising were a universal practice, few people would trust advertising and it would be very difficult to gain an advantage by means of deceptive advertising (Carson, 2002).
Self-Defeatingness of Deceptive Advertising : Application of Kant’s Categorical Imperative to Deceptive Advertising
German philosopher Kant proposed what he called the “categorical imperative” as a standard for the rightness or wrongness of actions. The categorical imperative can be stated as follows:
Act only according to that maxim whereby you can at the same time will that it should become a universal law. . . . Act as if the maxim of your action were to become through your will a universal law of nature (Kant, 1993).
Kant also proposes the following principles as a criterion of right and wrong: “An act is wrong if it could not become a universal practice without being self-defeating. (Kant, 1993)”
Kant’s argument in the case of deception in advertising would be that the person who engages in deceptive advertising would not be willing to have everyone else do the same, since if everyone did so the background of trust that makes his deception both possible and advantageous would no longer exist. Bowie argues that making deceptive advertisements in order to gain a competitive advantage is morally wrong according to this criterion. If deception in advertising were a universal practice, no one would trust advertising and no one could gain an advantage by means of deceptive advertising (Carson, et al., 1985).
For example, suppose that I create and run a deceptive ad for my own personal gain. Can I will that everyone else or every other advertiser make it a policy to do the same? Presumably not. In my own economic decision I want to act on the basis of true information. Further, since I hope to profit by deceptive ads, I want the public to be trusting of advertising. If all advertisers engaged in deception the public would be less trusting. Those who intentionally engage in deceptive advertising treacherously invite others to trust and rely on their ads and at the same time betray that trust, if deceptive advertising were a universal practice, few people would trust advertising and no one could gain an advantage by means of deceptive advertising. I cannot will that all other advertisers follow the same principles (maxims) that I follow. I want to make a special exception for myself (Carson, 2002).
The next argument is about the presence of legal restrictions against deceptive advertising.
Laws regarding the prohibition of deceptive advertising are, indeed, implications that deceptive advertising is wrong.
In the United States the laws concerning deceptive advertising are administered by the Federal Trade Commission (FTC) and state consumer protection agencies. The FTC has jurisdiction only in cases of ads that in some way cross state lines. Local ads that do not cross state lines fall under the jurisdiction of state consumer protection agencies. In addition, the Federal Lanham Trademark Act allows businesses that have been harmed by misrepresentations of other seller to sue for damages (Preston, 1994; Preston, 1998). Therefore, Lanham suits are significant to deceptive advertising.
In the Philippines, The Consumer Act of the Philippines (RA 7394) was passed to implement various constitutional mandates, among them Section 9, Art XVI of the 1987 Constitution on consumer protection against trade malpractice and substandard and hazardous products, including deceptive advertising (Pagunsan, 2004). The First Paragraph of the Article 110 of The Consumer Act of the Philippines states:
It shall be unlawful for any person to disseminate or to cause the dissemination of any false, deceptive or misleading advertisement by Philippine mail or in commerce by print, radio, television, outdoor advertisement or other medium for the purpose of inducing or which is likely to induce directly or indirectly the purchase of consumer products or services.
“The law regulates advertisements because they affect the public at large and it is the duty of the State to protect its citizens” (Pagunsan, 2004).
IV- DECEPTIVE ADVERTISING: DEFENDED (Arguments against the moral wrongness of deceptive advertising)
Most justifications of the permissibility of deceptive advertising reside on the view that the benefit derived by the seller through using deceptive advertising outweighs the harms that his ads cause others (Carson et al., 1985; Carson, 2002). The ultimate aim of any business is to make profit for the company. The use of deceptive advertisements creates profit for the business through enticing the people to buy their products or services, thus, increasing their sales. Consequently, stockholders gain their profits from it. Employees will be compensated and the business will continue to work. Perhaps, the business can generate more jobs and can contribute taxes for the government. Ideally, this benefit extends to the welfare of the economy and to the society at large. Thus, the benefit that it derives from the use of false advertisements outweighs the harm that his ads cause others.
It might also be argued that most of the following arguments above in favor of the moral wrongness of deceptive advertising are based on the presumption for supposing that harming is prima facie morally wrong. However, there are instances that inflicting harm to others are said to be not morally wrong. There is no absolute moral prohibition in harming others. One is justified to harm others in instances of self-defense or, for example, we might say that a journalist is justified in telecasting an expose harmful to the reputation of a certain corrupt politician.
It might also be argued that the moderate level of distrust fostered by advertising is something that is desirable and beneficial. Advertising helps to foster a ‘healthy skepticism’ not only for the claims of other advertisers, but for the claims of politicians and government officials also (Carson et al., 1985). A certain measure of distrust of others is prudent and advertising sometimes helps to instill this distrust (Carson, 2002). In connection, the customer will be aware of his responsibility not just to buy a product easily but also to check the quality of any product before purchasing it.
V – REPLIES AGAINST DECEPTIVE ADVERTISING
The first argument that favors deceptive advertising says that the benefit derived by the seller through using deceptive advertisements outweighs the harms that his ads cause others. This view seems to be implausible. If I ran a deceptive ad and benefited a lot from it, that benefit that I gained is counter-balanced by the harm to the competitors who also have their own employees and shareholders that were harmed because of the reduction of sales in their business brought about by running my deceptive advertisement – to say nothing about the harm to consumers and the social fabric as a whole. The harm inflicted to the competitors alone somewhat equals already the benefit gained by the seller who ran the deceptive ad. How much more if we add the harm inflicted to the consumers and to the social fabric as a whole? So this argument is not plausible to justify deceptive advertising.
The assumption that it is justifiable to harm somebody in order to benefit from it is very feeble. The fact that stealing your money would benefit me economically as much as it harms you would not justify me in stealing your money (Carson, et.al., 1985). So is with deceptive advertising. I am not justified to run a deceptive ad in order for me to gain profit as much as it harms my (mostly honest) competitors, consumers and the society as a whole. However, I accept that there’s no absolute moral prohibition in harming others. I agree that in very rare cases one is somewhat justified to harm others such as in self-defense. In self-defense, harming others (the aggressors) is a justified action in order for the self-defender to avoid the harm that the aggressors might inflict to him. Conversely, in deceptive advertising, the competitor, consumers and/or the society at large have no harm to inflict on the advertiser so there is no special reason for the advertiser to inflict harm to its consumer, competitor, and to the society at large. Someone must give a special reason in order for him to say that it is right for him to harm others and, most often, the avoidance of the potential harm that an aggressor might inflict to a person is a justified reason for a person to harm his aggressor.
Another feature of the argument in favor of deceptive advertising is that it increases the seller’s sales, thus, maximizing profits. However, is it necessary for a seller to deceive the customers in order for him to increase his sales?
I beg to disagree. I agree that a deception could be very beneficial to a certain business at first. After a deceiving ad is ran, the seller might enjoy the increase of his profits because he was successful in causing the customers to have false beliefs about the product and, consequently, the customers gave a bite and purchased the product. However, after consuming the product, the consumers are either satisfied or not about the advertised product. This will be the factor in determining if the customer will again purchase the product which in return will determine the future sales of the product. Oftentimes, many customer become dissatisfied about the product advertised deceptively because the product does not suit the information that was given to the customer in its advertisement. The quality of the product does not fulfill the expectation of the customer about the product so the customers will not again buy the said product which means a reduction on the sales of the advertisers. In this age of information sharing, it is easy for people to denounce a certain product that deceives the public. A dissatisfied customer can influence her friends not to buy anymore a certain product because through experience she comes to know that the information given by the advertisement about the certain product is not true. Through the internet, a person can easily blog his dissatisfaction about a certain product that can influence people to be hesitant in buying the product. There is also the possibility that when it is found that the advertiser ran a deceptive advertisement, the advertiser can be sued and will be asked to pay a fine for the compensation of the harm it brought to the customers. This will not only reduce the income of the advertiser, the reputation of his products will also be in danger that might cause to the reduction of sales for his product.
At best, I argue that the best advertisement for a certain seller to increase his sells and profits is a satisfied customer. And mostly, customers are satisfied because the advertisement has given the right information about the product and meets the satisfaction of the customer in line with the right information he gained from the honest advertisement about that product.
Samm Sicclair Baker (1968) said: “Honest, interesting, informative advertisements can be most productive for the advertiser and agency over the long run. The benefits of advertising a good product can be enormous for all and disastrous for an inferior product. . . .” He illustrated this claim in a very simple yet interesting and substantial story:
Once there was a baker who baked very poor pies. Naturally he sold very few pies. He decided that he could sell more by advertising. So he placed an appealing ad in the local newspaper; he was a very able adman but an inferior baker.
Soon after he opened his shop the next morning, crowds of women attracted by the ad started pouring in for his pies. His wife was delighted. But suddenly the baker yelled, ‘Lock the door! Don’t let in anymore customer!’
When the store had been emptied, he placed a sign on the door: ‘Sold out of pies.’ His wife complained, ‘But we still have dozen of unsold pies.’
‘I know,’ said the baker, ‘but I suddenly realized that if so many people find out how bad our pies are, they’ll tell their friends. Nobody will ever come to our shop again. We’ll be ruined. Before I advertise anymore, I’ll have to learn how to bake better pies.’
He concluded that nothing fails faster than a poor product that has been boosted by heavy advertising.
“The benefit that comes from deception are likely short-lived and outweighed by subsequent disappointment upon learning the truth” (Carson et al., 1985).
Lastly, proponents of deceptive advertising claim that deceptive advertising fosters a moderate level of distrust that is desirable. Deceptive advertising helps foster a healthy skepticism not only for the claims of other advertisers, but for the claims of politician and government officials as well. A certain measure is prudent and advertising sometimes helps to instill this distrust. However, this line of reasoning cannot justify deceptive advertising. One cannot justify an unethical conduct on the grounds that it helps to warn others to be on guard against conduct of that very sort. This reasoning seems to be circular and absurd. “A mugger cannot justify his actions on the ground that he causes people to be more cautious about where and how they travel. Similarly, a politician cannot justify lying to the public on the grounds that doing so will help instill a prudent distrust of politician in the average person” (Carson, 2002).
VI – FINAL ANSWER
Deceptive advertising is morally wrong for the main reason that it harms the consumers, the (mostly honest) competitors, and the society at large. In addition, through the use of deceptive advertisements, one also violates the moral principles such as the Golden Rule and Kant’s Categorical Imperative. The benefit that advertisers get from deceptive advertising is never an adequate justification for deceptive advertising, especially for harming others. In the end, I argued that deceptive advertising is not necessary for the sellers to increase their sales and profits. Honest advertisement is more beneficial both for the advertiser, the consumers and for the society as a whole.
Baker S. 1968. The Permissible Lie: The Inside Truth about Advertising. New York: The World Publishing Company.
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Carson, T. 2002: Ethical Issues in Selling and Advertising. In Norman E. Bowie. ed. The Blackwell Guide to Business Ethics,186-205. Oxford: Blackwell Publisher.
Kant, I. 1993.: Grounding for the Metaphysics of Morals. James Ellington, trans., 3rd edn. Indianapolis: Hackett
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Preston, I. 1998: Puffery and other “loophole” claims: How the law’ “don’t ask don’t tell” policy condones fraudulent in advertising. Journal of Law and Commerce.18, pp. 49-114.
The Consumer Act of the Philippines. In Sinforoso R. Pagunsan. The Law and Advertising. Manila, Philippines: De La Salle University Press, Inc.
When I use the term customers, buyers, and/or consumers, I deem to use them interchangeably. They may have difference in meaning but I want to use the terms interchangeably to connote those people who are mostly affected by deceptive advertising either through purchasing, or using the product that is deceptively advertised.