SIGNS IN SOCIETY - STIBA Malang

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