Deceptive Advertising? Not Quite

In response to this editorial posted at GameStooge, I laughed. I truly hope that jonahfalcon was writing it more for comic content than for actual legal content.

Is the Guitar Hero II box deceptive advertising? No. I don’t have my copy in front of me for the exact wording, but indicating that certain songs are included would not be deceptive, even though you cannot play them from minute one. In fact, if it were considered deceptive, then any game which says “## Levels Included!” would be guilty of a similar deceptive practice. I am sure someone, reading an article such as this, will expend the resources just to test such on box advertising in court, and I can only assume the judge hearing said action will quickly dispose of it.

It is the Federal Trade Commission that deals with deceptive advertising. They define a deceptive ad as one that “contains a statement – or omits information – 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.”

In making that determination, the FTC follows these steps:

  • The FTC looks at the ad from the point of view of the “reasonable consumer” – the typical person looking at the ad. Rather than focusing on certain words, the FTC looks at the ad in context – words, phrases, and pictures -to determine what it conveys to consumers.

  • The FTC looks at both “express” and “implied” claims. An express claim is literally made in the ad. For example, “ABC Mouthwash prevents colds” is an express claim that the product will prevent colds. An implied claim is one made indirectly or by inference. “ABC Mouthwash kills the germs that cause colds” contains an implied claim that the product will prevent colds. Although the ad doesn’t literally say that the product prevents colds, it would be reasonable for a consumer to conclude from the statement “kills the germs that cause colds” that the product will prevent colds. Under the law, advertisers must have proof to back up express and implied claims that consumers take from an ad.

  • The FTC looks at what the ad does not say – that is, if the failure to include information leaves consumers with a misimpression about the product. For example, if a company advertised a collection of books, the ad would be deceptive if it did not disclose that consumers actually would receive abridged versions of the books.

  • The FTC looks at whether the claim would be “material” – that is, important to a consumer’s decision to buy or use the product. Examples of material claims are representations about a product’s performance, features, safety, price, or effectiveness.

  • The FTC looks at whether the advertiser has sufficient evidence to support the claims in the ad. The law requires that advertisers have proof before the ad runs.

Source

Applying these guidelines, it seems that a reasonable consumer of video games will know that more content becomes available as the game is played. In fact, the vast majority of games follow this model, be it through levels, items that expand the playable area (i.e. Metroid or Zelda), or an accomplishment-unlocking system (i.e. Guitar Hero). In fact, the accomplishment-unlocking system has been a staple of the racing game for quite some time, usually additional tracks and cars, as well as many iterations of extreme sports games like Tony Hawk or SSX.

Even if an ordinary consumer might be misled, the statement itself is still not material. Most consumers who buy a game are willing to play it, so most consumers will make the content available. It took me less than 6 hours of actual play time to have every song available in Guitar Hero II. Even if you could only play an hour a day, the content would be available in less than a week. And the unlocking scheme doesn’t mean the content is not there, just not accessible.

Video games do not easily compare to other products or forms of entertainment. Analyzing them typically takes some new thinking and needs to avoid the kind of analogies used in the GameStooge article. I continue to assume, though, that the article was written for humor rather than content, and in that regard the author was quite successful.

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About Mark Methenitis

Mark Methenitis is an attorney in Dallas Texas. Mark received his Juris Doctorate and his Master of Business Administration from Texas Tech University and his Bachelor of Arts from The University of Texas.

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