A Good Disclaimer Can’t Save a Deceptive Ad

The Children’s Advertising Review Unit of the Council of Better Business Bureaus (CARU), an investigative unit of the advertising industry’s system of self-regulation, recently recommended that a maker of a toy race car modify its advertising to make clear that a toy car does not make racecar sounds.  The advertising at issue did not come to CARU’s attention through a competitor challenge but rather through CARU’s routine monitoring practices.

The product in question was the JAKKS Mario Kart 8 Anti-Gravity RC Racer which is based on a vehicle featured in a Nintendo game.  A 30-second television commercial for the product featured the racer speeding through a house accompanied by the sound of a revving engine.  CARU determined that one reasonable take away from the commercial was that the toy was equipped to make engine noises.

While the advertiser noted that an accompanying video super clarified: “Sound effects added. Product makes no sound,” CARU’s guidelines provide that “Copy, sound, and visual presentations should not mislead children about a product or performance characteristics. Such characteristics may include, but are not limited to, speed, method or operation, color, sound, durability… and similar characteristics.”  CARU’s guidelines also note that advertisers should demonstrate the performance and use of a product in a way that can be duplicated by a child for whom the product is intended.  In its decision, CARU therefore recommended that the advertiser modify the commercial to better disclose the toy’s capabilities.

Key takeaway: A disclaimer cannot cure a material claim in advertising that is false or misleading as to any reasonable takeaway from its message.

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