SIGNS IN SOCIETY - STIBA Malang
SIGNS IN SOCIETY - STIBA Malang
SIGNS IN SOCIETY - STIBA Malang
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146 I Comparative Perspectives on Complex Semiotic Processes<br />
sidered a small, forgivable remnant from an earlier irrational tradition. In fact,<br />
however, the frequency of puff claims remains high, and the absence of informational<br />
language becomes a notable feature of many types of ads, especially as<br />
visual imagés gradually replace the representation of language in mass media advertising<br />
(Richards and Zakia 1981).<br />
The net result of the formal continuity of puffs in advertising and the growing<br />
ideology of reference is an increased tendency for consumers to interpret puffs<br />
according to clues as to their prepositional form rather than according to formerly<br />
interprétable indexical cues. TheVegulated referentiality, assigned to a portion<br />
of the ad is, then, transferred to expressions of puffery, attributing to them<br />
analogically the actuality previously dismissed by all reasonable people. "And it<br />
is'tKis transference that provides the ultimate haven for commercial advertisers,<br />
since their claims contained under the guise of puffs are not subject to either<br />
prohibition as misleading representation or the requirement of fa^tuaUjinSstantiation—and<br />
yet they are widely believed to be informational: Rather than protect<br />
consumers by fostering an accurate understanding of the form and function of<br />
advertising, the courts and regulatory agencies in fact contribute to the endemic<br />
metapragmatic opacity essential for effective commercial persuasion.<br />
The recent history of legal consideration of commercial advertising involves<br />
two seemingly contradictory movements, first, the increasingly vigorous regulation<br />
of ads by the FTC and, second, the recognition by the Supreme Court of<br />
First Amendment protection for commercial speech. I say "seemingly contradictory"<br />
because, in the end, these two tendencies work together to promulgate the<br />
ideology of reference noted above. The FTC's actions between its inception in<br />
1914 and 1938 were confined to regulating ads which violated Section 5 of the<br />
FTC Act, which states: "Unfair methods of competition in commerce are hereby<br />
declared unlawful." This wording, which applies almost wholly to the problem<br />
of antitrust violations, implies that misrepresentation in ads would hinder free<br />
competition, since false information regarding one product would necessarily<br />
harm other products in the same class. The authors of the original bill establishing<br />
the FTC explicitly identified its function as parallel to that of the Interstate<br />
Commerce Commission and viewed the new regulatory agency as a means of<br />
overcoming problems in enforcing the Sherman Antitrust Act. Although the original<br />
wording of the act did not mention deceptive advertising, the first cases to<br />
come before the agency were cases involving deception of consumers: for example,<br />
the labeling of goods containing less than 10% wool as "woolen" was ruled<br />
as deceptive and thus an act of unfair trade, since it diverted business from firms<br />
whose advertising did not falsely represent their product.<br />
The FTC orders were, however, subject to judicial review. In Ostermoor &<br />
Company v. Federal Trade Commission (16 Fid 962 [1927]), the U.S. Circuit<br />
Court of Appeals annulled an FTC cease and desist order against a manufacturer<br />
of mattresses, whose ads constituted unfair competition. The FTC had decided<br />
The Semiotic Regimentation of Social Life I 14 7<br />
that pictorial representation of the increased thickness of cotton filling freed of<br />
restraint as 3 5 inches or more, when in fact the expansion was closer to 3 to 6<br />
inches, constituted a violation of Section 5, since it implied "a resiliency or elasticity<br />
far beyond the fact." The Court agreed with a dissenting FTC commissioner<br />
that "the slightest pictorial exaggeration of the qualities of an article cannot<br />
be deemed to be either a misrepresentation or an unfair method of<br />
competition." In fact, the Court ruled that the exaggeration fell within the<br />
"time-honored custom of at least merely slight puffing" in that the visual representation<br />
was clearly not intended by the manufacturer to be literally "descriptive"<br />
but merely "fanciful."<br />
This case is instructive for it illuminates two of the legal criteria for the puffery<br />
exemption, first, that if the fanciful exaggeration is directed at some'qüality<br />
or property then the quality or property must be something which the product<br />
does in fact have to some degree (here, having the tendency to expand when<br />
released) and, second, there must be an absence of contrary signals within the ad<br />
itself which might suggest that the puff representation is to be interpreted as literally<br />
descriptive (say, by the use of an accurate measuring rod or the citation of<br />
"scientific" testimony). In other words, a legitimate puff cannot creatively predicate<br />
a nonexistent quality to some product and cannot communicate a false<br />
metapragmatic message that the puff is a factual claim.<br />
The puffery defense was not admitted in Fairy foot Products Co. v. FTC (80<br />
F2d 684 [1935]), a case in which this second criterion of being "not calculated<br />
to deceive" was clearly violated. Advertisements for a bunion plaster claimed that<br />
the product dissolved bunions, stopped pain, and provided instant relief, and then<br />
created a powerful context otTäctioty by mentioning the approval of physicians/^<br />
and doctors. The petitioner argued that the exaggeration in the ads was within<br />
the realm of puffery and, where not, the ads were "largely justified by the facts \i<br />
But the Court ruled:<br />
( Î ^ M ^<br />
That the petitioner's plaster has virtue may, for the purposes hereof, be con- '<br />
ceded. Indeed, it would be quite unreasonable to assume that one putting out , . , .<br />
a purported remedy for an affliction would not employ some ingredients or ^tff ' '<br />
means calculated to benefit some cases at some stage. But this would not justify j<br />
such sweeping claims as the condemned items of this advertising matter dis-<br />
J<br />
close, which were evidently intended to induce in the public mind the belief * ÔVthat<br />
here was an absolute and unfailing panacea for bunions of all kinds and » y><br />
degrees. Just whereiieymeïinrfceTwêën^ which is not unlawful and * ^ »" n<br />
unwarranted, and misleading representations in advertising, is often very difficult<br />
of assertainment. But in our judgment this case does not present such em- ' -i ,,>A- 1<br />
barrassment, since the advertising here condemned is well beyond any .1 ' ", \f\<br />
"puffing" indulgence. \ ùkp V '''<br />
v1<br />
? I * •<br />
The addition of the phrase "unfair or deceptive acts or practices" in thé<br />
Wheeler-Lee amendment of 1938 made explicit the FTC's power to protect in-