"Did You See That?": FTC Halts Nissan Truck Ads

Last week Nissan North America and advertising agency TBWA Worldwide signed consent agreements with the Federal Trade Commission, settling allegations that a Nissan Frontier truck advertisement, which aired in 2011, was deceptive. This is the latest in a series of actions the FTC has taken to curb deceptive automobile advertisements.

The ad in question showed a Nissan truck pushing a disabled dune-buggy up a sandy hill as onlookers cheer and shout. The FTC alleged that in reality the truck and buggy were both towed up the hill on cables and that the sand dune was manipulated to appear steeper than it actually was. These commercials, the FTC argued, misrepresented the abilities of the Nissan Frontier, which cannot actually push dune buggies up steep, sandy hills. The FTC complaint also noted that the ad was shot in a "realistic, 'YouTube' style, as if shot with a mobile phone video camera," which seems to have contributed to the FTC's belief that the advertisement deceptively portrayed the truck's capabilities.

The FTC's pursuit of these claims should remind advertisers that product demonstrations and depictions can constitute advertising claims about their products' capabilities. While special effects are ubiquitous in advertising, advertisers must carefully walk the line between presenting attention-getting advertising and making inaccurate representations about their products. Disclaimers may help clarify for viewers the circumstances depicted in ads, but only if they are clear and conspicuous. The Nissan ad included the disclaimer "Fictionalization. Do not attempt." but the FTC took the view that it was insufficient because it was in small text, displayed only for a short period of time, and disappeared before the truck was shown on screen.

The FTC doesn't frequently bring complaints against ad agencies too, but it is not unprecedented. The FTC's position is that an ad agency may be liable for deceptive advertising if it actively participated in the creation of the ad and knew or should have known the claim was deceptive. The FTC's actions with regard to Nissan's truck ad underscores the need for both advertisers and the ad agencies to pay close attention to the express and implied claims that the visuals in advertisements communicate to consumers.

© Arnold & Porter Kaye Scholer LLP 2014 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.