False and Misleading Advertising


Introduction

Modeling scams often start with bogus advertising. Modeling scam artists use two main types of bogus advertising to lure consumers into their scam: false advertising and misleading advertising.

1. False Advertising

False advertising is straight lies. The advertising is patently false. This includes false claims about when a company was started.

The representative of one model scouting firm said it was more than ten years old. The scouting firm, in fact, according to its website and news reports, was not more than five years old.

False advertising by modeling firms also includes false claims about whom a modeling company discovered, and whose modeling or acting career began through the company.

In 2001 the representative of one modeling business claimed they discovered Cindy Crawford. (Apparently many people claim they discovered Cindy Crawford.) But the company had not even started doing business until about 10 years after the Cindy Crawford's modeling career started.

Similarly false advertising includes bogus name dropping with references to supermodels, celebrities, prestigious modeling agencies, national brands, and popular movies which had nothing to do with the firm.

The same firm which said it discovered supermodel Cindy Crawford said Cindy Crawford and a host of other supermodels used their website to get work.

Their false advertising included a website demonstration to aspiring models whom they tried to recruit to pay for online comp cards showing pictures of the supermodels in online comp cards.

False advertising in the modeling industry directed at potential models can include false statements about photographers, claiming they are professionals and their work has appeared on the covers of fashion magazines, or how many years a photographer has been taking pictures.

There is also false advertising used in quotes.

An online modeling portfolio website advertised its success at modeling job opportunities and offers, using quotes from modeling agencies who supposedly had looked for models on their website.

It offered examples of “recent job offers” that had come through their website. Below the introduction, at the top of the web page, the title was: “Top Modeling Agencies from Around the World.”

Then it listed several quotes, including one quote from "Industry Models, Toronto":

I’m the owner of Industry Models. Currently we’re seeking models for an upcoming shoot in Toronto with top photographer [name withheld]. This is a paying job and would be interested in forwarding your information to the photographer. Please get back to me asap for more information. Also I need you to forward me recent photos. Thank you. - Industry Models, Toronto

To investigate the advertising claim basic research was done to find out more about "Industry Models."

Typing industrymodels.com into the web browser yielded nothing; the same with industry-models.com.

The whois domain database revealed industry-models.com had not been registered, and industrymodels.com had been registered, but not to a company in Toronto, Canada. It was registered to someone in Massachusetts, in the United States.

Research through a search engine, however, resulted in finding a website called Industry Models at a geocities web address.

The website said: "We are an online promotion agency working with top modeling and talent agencies worldwide to discover new talent."

It did not list the names of the top modeling and talent agencies, nor did it list any quotes from leaders in the top agencies, nor did it show it had any success in the modeling industry.

But it went on to say: "If you want to start a carrier [sic] in modeling, we can help you!"

The website offered pictures of 24 faces, and very little more information about itself (like physical address, which modeling agencies provide).

There was no evidence or indication Industry Models is a top agency or even a registered company. The only thing that was clear is it was a small website.

Further research in search engines for “industry models” yielded no company website listing, experience, references, or relevant information.

Top Modeling Agencies from Around the World have their company domain name registered and their website operating at the same name.

Why was Industry Models described as one of the “Top Modeling Agencies from Around the World”? It is not. That is false advertising.

2. Misleading Advertising

Misleading advertising can be described as advertising which is not totally false but it is deceptive. At issue is not just the content but its effect. The effect of the advertising, and the interpretation of it, no matter how much truth it has, is basically the same as false advertising: deception.

The Federal Trade Commission Act prohibits individuals or businesses from making false or misleading advertising claims. Section 5 of the FTC Act allows the FTC to protect consumers by taking enforcement actions against individuals or businesses that violate Section 5 of the Act.

The FTC website says: "In interpreting Section 5 of the Act, the Commission has determined that a representation, omission or practice is deceptive if it is likely to: mislead consumers and affect consumers' behavior or decisions about the product or service."

The standard of the issue is a tendency or capacity to mislead. There is a statute in California, for example, where "The statute does not require actual deception, only a tendency or capacity to deceive."

The Department of Consumer Affairs for the State of California wrote an advertising guide in which it said:

It is a violation of both California and federal law to disseminate an advertisement which is untrue or misleading. The prohibition against false and deceptive advertising is broad.
 
In applying the prohibition, courts interpret the rule to meet the ever-changing characteristics of the marketplace, and the ever-changing acts and practices of companies that merchandise property, services, and credit.
 
In determining whether an advertisement is deceptive, the test is whether the advertisement has the tendency or capacity to mislead. (Chern v. Bank of America (1976) 15 Cal.3d 866, 876 [127 Cal.Rptr. 110].) The statute does not require actual deception, only a tendency or capacity to deceive.
 
In applying this standard, the advertisement is viewed from the perception of the audience to whom the ad is directed. (Aronberg v. FTC (7th Cir. 1942) 132 F.2d 165, 167; Ford Motor Co. v. FTC (1941) 120 F.2d 175, 182.)
 
Thus, the key question in determining whether a particular advertisement is deceptive is: Does it have the "tendency" or the "capacity" to deceive the audience to whom it is directed?1

An online comp card website used misleading advertising when it said Ford and Elite used its website to find new faces. Both Ford and Elite complained to the firm and Elite sent a cease-and-desist letter.

The website had been used by an agency which had Ford in its name, but it was not the Ford Models of New York; it was a business based in Boston.

The website had been used by an agency which had Elite in its name, but it was not the Elite Models of New York; it was a business based in a foreign country.

The advertising was not totally false, because there was some truth to it. But it was misleading because potential customers were misled to believe top agencies in New York used their website.

In both cases the target audience had both the capacity and the tendency to be misled by the advertising.

Misleading advertising includes advertising which is misleading not only by what it says, but also by what it does not say. Just because every claim a modeling agency or firm makes is true, that does not mean its advertising is not misleading. It is not enough for advertising to be true, it cannot mislead. The FTC Guide:

The FTC Act prohibits unfair or deceptive advertising in any medium. That is, advertising must tell the truth and not mislead consumers. A claim can be misleading if relevant information is left out or if the claim implies something that's not true. For example, a lease advertisement for an automobile that promotes "$0 Down" may be misleading if significant and undisclosed charges are due at lease signing.2

Hidden costs, therefore, could be part of misleading advertising.

Modeling agencies can mislead potential models by misrepresenting their ability to get them modeling work or by misrepresenting the type of modeling work they can get models.

Critics said two agencies promoted their agency to get high-paying work when in fact they were mostly or only successful in getting models low-paying work.

References

1. http://www.dca.ca.gov/legal/u-6.html

2. http://www.ftc.gov/bcp/conline/pubs/buspubs/ruleroad.htm

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