ADventures in Law

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The other day, we noticed an article announcing that <a href="https://www.mediapost.com/publications/article/372478/legendary-direct-marketer-joe-sugarman-dies-at-83.html">legendary direct marketer Joe Sugarman</a> had passed away. He had quite a career in the industry but was probably best known for the omnipresent BluBlocker sunglasses that were on heavy rotation in the 1980s and early ’90s. For younger readers, BluBlockers were ultra-cool sunglasses that promised to filter out ultraviolet and blue lights and “produce one of the most pleasing visual effects ever created for any pair of sunglasses.” And the <a href="https://www.youtube.com/watch?v=2wuB_ufWhi8">infomercials</a> and other advertising were <a href="https://www.youtube.com/watch?v=s9SRyeDNPBk">quite entertaining</a>.

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But a trip down advertising memory lane unfortunately often leads us into the <a href="https://www.youtube.com/watch?v=kUsFWO08CO0">Federal Trade Commission (FTC) danger zone</a>. And there was a <a href="https://www.inc.com/magazine/19820101/5254.html">long and colorful history between the FTC and Sugarman</a>. Our focus, however, will be on a 1992 <a href="https://www.ftc.gov/sites/default/files/documents/commission_decision_volumes/volume-111/ftc_volume_decision_111__july_1988-_june_1989pages_522_-_620.pdf">FTC action</a> against Sugarman and his company relating to our favorite shades. The agency didn’t challenge the effectiveness or any of the substantive claims about the BluBlockers, but rather focused on the deceptive nature of other aspects of the advertising. The FTC alleged that the ads misled consumers into thinking they were describing “independent and objective” content, and that was far from the case. The ads described a “Consumer Challenge TV show” that it compared to well-known investigative reporting shows such as “60 Minutes” and “20/20.” “Consumer Challenge” (which, let us be clear, wasn’t a real show) was purportedly planning to do an exposé on BluBlockers, but ultimately, “by the end of the show, the entire staff praised the product in one of the best commercial endorsements any product could ever receive.” Indeed, “our entire staff wears them now.”

The agency stated that “Consumer Challenge” was not an independent consumer program that conducted independent or objective investigations of consumer products and “was created by Joseph Sugarman … for the sole purpose of selling BluBlockers.” Additionally, the “Consumer Challenge” producers and investigative reporters were compensated for producing and acting in the advertisement. If you ignore the alleged deception, it was a great pitch – the planned exposé became a ringing endorsement for the product.

To settle the case, the respondents agreed to an injunction that prohibited them from misrepresenting that a product had been independently evaluated or “that an advertisement is an independent consumer or news program and not a paid advertisement.” It also required the ubiquitous disclaimer at the beginning of “any program-length advertisement that the program is an advertisement or commercial.”

Thirty years later we are still addressing these issues, making sure that consumers know that what they are seeing is advertising and not independent content. FTC <a href="https://www.ftc.gov/business-guidance/resources/native-advertising-guide-businesses">guidance on native advertising</a> and policy statements on <a href="https://www.ftc.gov/legal-library/browse/commission-enforcement-policy-statement-deceptively-formatted-advertisements">deceptively formatted ads</a> demonstrate the continued importance of this issue.

So the next time you are looking at an ad – whether it’s an old-school print publication or on social media – and making sure that the ad and your influencers are clearly disclosing that the content is advertising content – put on your BluBlockers and be clear and conspicuous in your disclosures.

The Future’s So Bright, I Gotta Wear BluBlockers – A Walk Through Advertising History