Volkswagen and Advertising Law

In the United States, national advertising is regulated by the Federal Trade Commission. Section 5 of the 1914 FTC Act states, "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

Advertising may be judged unfair and/or deceptive if there is a literal or even implied representation, omission or practice that is likely to mislead consumers and if it is reasonable to conclude consumers may rely on the advertising when deciding whether to purchase the product or service in question.

The recent events concerning Volkswagen diesel automobiles illustrate the FTC's responsibilities concerning advertising claims.

In 2015, national television advertising for the Volkswagen TDI Clean Diesel products has touted at least three highly specific claims concerning the performance of the VW diesel engine: rapid acceleration with 236 foot pounds of torque, high efficiency with 44 highway miles per gallon of fuel, and convenience with 814 highway miles per tank full of fuel.

However, it has now come to light that as many as 11 million Volkswagen cars worldwide are fitted with the Volkswagen Type EA 189 engines that are showing material performance deviations between their actual road use and the advertising claims Volkswagen has been making to sell these automobiles.

This is the basis for concluding Volkswagen has been making deceptive and/or unfair advertising claims for its recent diesel automobiles. It now appears the VW cars in question may only deliver the promised performance claims because the mandated pollution control mechanisms are being subverted during the owners' everyday use of their cars.

The recent Volkswagen diesel engine advertising can been seen as deceptive in that VW has made specific claims for performance that do not reasonably accord with the normal use of the automobiles in question.

This Volkswagen advertising can also be seen as unfair in that the claims made by Volkswagen cannot be easily independently judged by the buyers themselves. Most car buyers are not automotive engineers with their own sophisticated testing facilities.  These buyers had to rely on the information supplied by Volkswagen which has subsequently been shown to have been both incorrect and the result of engineering practices that did not report everyday performance.

Advertisers know they are responsible for possessing truthful evidence for the claims they make before any advertising claim is shown to the public. That has been the law of our land for quite some time.  It should be no surprise to Volkswagen management.

Also, the Federal Trade Commission has responsibilities for ongoing monitoring and review of advertising claims. The FTC guide for mileage claims in advertising states that advertisers must clearly and conspicuously disclose any distinctions in "vehicle configuration" and other equipment affecting performance between automobiles tested in non-EPA tests and the EPA tests. Mechanisms and software to deceive EPA testing would certainly be seen as resulting in a non-EPA test.  This incident suggests the FTC might usefully ramp up its monitoring for advertising substantiation.

Indeed, these events point to questions about the appropriateness of corrective advertising so that consumers are informed of the manner and extent VW's corporate behavior. Should corporations be allowed to move forward on the basis of ill-gotten gains in the marketplace, or does marketplace fairness call for a resetting of consumer perceptions of the VW brand to accord with the full extent of the company's deceptive and unfair business practices? Is this brand "too big to fail?" or will transparency and marketplace fairness rule the day?

       Copyright © 2015 by John Eighmey. All Rights Reserved.

Ad Blocking and Involuntary Attention

Much is being said about the increasing using of ad blockers by visitors to interactive media sites.

This is what happens when the advertising information burden on many media sites brings about what users perceive as unreasonable and even unfair levels of frustration and economic cost.

The moment-to-moment experience of people can be described as the continuing search for relevance. People have goals and purposes, and they voluntarily focus their attention on information content that helps them advance their goals.

In this connection, advertising is largely a distraction. Indeed, historically, advertising as been successful to the degree it brings about involuntary attention.

In simpler times, with fewer media choices and lower levels of advertising burden, media audience members largely accepted the involuntary distractions of advertising. As readers turned conventional newspaper and magazine pages they accepted the advertising because they controlled the page turning. And the advertising content they did notice sufficiently rewarded readers with useful information and entertainment. In the broadcasting and cable media, commercial breaks were paced so as to maintain audience interest.

Now, we face a new reality in the interactive media world. Advertising content is often immediately forced on the audience before users even get to the desired site. Ads are often surprisingly interjected in layers placed over the content users are actively viewing. Mobile viewers often find ads placed in such ways that their attempts to scroll content cause them to inadvertently click through to unwanted advertising content and even to other sites.

With such widespread use of advertising injecting techniques, it is understandable that many in the interactive media audience are sensing an unacceptable loss of autonomy and are seeking to block what they perceive to be unwarranted interference from advertising. Indeed, for some audience members the interference also introduces download cost burdens.

Some interactive media are responding by blocking the ad blockers.  This seems likely to be a self-limiting direction that will only escalate the current situation.

The growing use of ad blockers is a strong signal that people want more autonomy in their relationships with interactive media. Continuing practices that force feed advertising content while blocking the advertising blockers is not a path to a productive future.

Copyright © 2015 by John Eighmey. All Rights Reserved.

Advertising Can Make Your Day

Creative victories come in various forms and degrees. Some assignments are struggles, while others allow creative people to reinvent what the product category advertising can be.

In that respect, this new commercial from Denmark is definitely a cut above.

Carlsberg smartly brands this highly entertaining commercial from the very beginning. We are charmed by the turn of events and ready to accept the idea this is the best beer brand in the world.

An advertising creative person's goal should be to produce advertising that will be the most memorable item in all the media content the audience is seeing. Indeed, when it comes to attention and entertainment, this Carlsberg commercial can make your day.

Copyright © 2015 by John Eighmey. All Rights Reserved.

Advertising Problem Solution

Problem-solution is perhaps the strongest narrative approach in advertising. Show a problem in a compelling manner and anyone who shares that concern will pay attention.

The audience wants to know "what's in it for me?"

But, what if the solution is already within us?

That's interesting.

Beyond the public service appeal to drive safely, this commercial also has a selling idea. The car is presented from attractive angles of view, it is quick, it moves well, we like it's attitude. The car has a personality. It wants it's owner to be successful, to do the right thing.

Interestingly, advertising ideas are often predictive. Why shouldn't cars monitor driver behavior? Some might say the car would be over reaching, taking away their "rights." Others might be grateful, recognizing no one has the right to carelessly harm others.

This is admirable advertising.

Copyright © 2015 by John Eighmey. All Rights Reserved.

Advertising and Excitation Transfer

Emotions are said to have a cognitive basis.

Whenever we notice an upwelling of sensation within ourselves, we name the feeling based on how we interpret our surroundings at that very moment. It is is our cognitive interpretation of the actions or stimuli we see before us that leads us to give a name to that felt sensation, be it joy, anger, regret, love or any other named emotion.

So, over the years, each of us learns through experience to associate events, places, people and things with feelings.

These upwellings of sensation vary in intensity and duration. Indeed, the felt sensations often continue within us after the immediate event or stimulus that triggered them.

This continuance of certain feelings over time is the basis for what psychologists call Excitation Transfer Theory. An emotional response triggered by one event or stimulus can carry over to an immediately following event or stimulus. In this way, the emotions aroused by an initial event or stimulus become associated with an immediately following event or stimulus.

Here we see this notion applied in advertising.

So the narrative of the dog's loyalty produced an upwelling of sensations likely interpreted as a form of sympathy. We are surprised by the ending, and in this moment of realization concerning organ donation, our continuing feelings of sympathy are transferred to our intentions toward organ donation.

This is an example of excitation transfer theory. It underscores the importance of emotional response in admirable advertising.

Copyright © 2015 by John Eighmey. All Rights Reserved.

How To Sell Automobiles Today

Longer, lower, wider, more powerful... these are among history's most common selling ideas for automobiles.  Bigger and bolder was once the road to success.

The world is changing rapidly, and what we want from cars is becoming vastly different. Above all, we want security in an increasingly challenging environment. Security is obviously about safety. It is also about reliability and convenience.

Now Volvo has added health.

Everyone who drives in polluted urban environments will appreciate this product advantage. And, on the open road, there are increasing concerns about airborne factors including even the bacteria we may breathe.

Notice the communication approach. It is all about the product feature. Indeed, the product feature has been given a brand-focused metaphorical name.

Going into the future, this is how to sell cars. No user imagery, no hype needed. As consumers, in challenging times, we know relevance when we see it.

Copyright © 2015 by John Eighmey. All Rights Reserved.

To Be Made To Think Is To Agree

When someone challenges you to take a test, you generally take them up on it. Just look at all the tests people are sharing on Facebook these days.

Let's say you are asked to watch closely to see if any street scene passers by are noticing a new model of a car parked by the sidewalk. You would mostly likely try it.

Students who have taken my Psychology of Advertising classes easily recognize this technique as an example of the Elaboration Likelihood Model of persuasion.  To persuade in a memorable manner, messages must garner attention, hold attention, and invite the audience to think. Thinking is called "elaboration" in this conceptual model, hence the theory's name. 

So now, take the test.

The results of effective elaboration messages have been shown to be longer lasting attitude change as well as attitudes that are more resistant to competing messages. You have been thinking about the new Skoda Fabia.

Advertising scholars will remember a classic 1972 VW Beetle commercial that also used this "attention test" idea.

Both the Skoda and VW commercials are quite admirable. Think about them.

Copyright © 2015 by John Eighmey. All Rights Reserved.