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Are Short Bill Titles a Form of Deceptive Advertising?

01/24/2013 12:02 pm 12:02:48 | Updated Mar 26, 2013

Imagine your congressman or woman might be less than truthful with you about a recent bill they introduced. What would happen if the Federal Trade Commission, the watchdog Congress has established to police false or misleading advertising, turned its attention towards deceptive practices for bills and laws? Could the congressional practice of endowing fanciful short bill titles on proposed legislation survive the type of scrutiny that advertisers face daily regarding the names and claims they make while selling products to consumers? That's the premise of a recent article we wrote for the Seton Hall Legislative Journal.

Most major pieces of legislation receive official short titles, yet not all of these names are what they appear to be. For example, the legislation passed to help combat terrorism after 9/11 is officially entitled, "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." Quite a mouthful, isn't it? Few people would recognize this legislation by its full name, but many likely recognize its short title, the USA PATRIOT Act.

In this age of tweets and texts, shorter is better. Short titles may serve useful purposes in that they could facilitate discussion and reference to legislation, but such titles often serve another perhaps less noble purpose -- "branding" proposed legislation and helping to promote its passage through Congress. Confidential interviews with congressional staffers confirmed that short bill titles served a "branding purpose," were useful from a "branding perspective," were used for "press reasons or marketing reasons" and were employed for "marketing strateg[ies]." This branding function leads to serious questions about whether Congress sometimes goes too far by creating overly evocative and tendentious short titles that misrepresent or distort legislation.

The FTC wouldn't have to look too hard to find problematic cases, as such titles abound in contemporary Congresses. The No Child Left Behind Act is one of many prominent examples of deceptive naming. One would think the title was all rhetoric until they read official Department of Education reports on the legislation, stating that "[e]very child can learn. Every child must learn. And thanks to NCLB, every child will learn." It's hard to justify this language being used about any law, let alone a major piece of education legislation. Alas, such language is used for other laws, such as the Prison Rape Elimination Act of 2003. Our article demonstrates how the act has not even come close to "eliminating" prison rape, or even sharply reducing it, therefore undeniably failing its stated goals. Congress has passed other distinctly problematic titles, such as the Comprehensive Crime Control Act of 1984, which in the years following violent crime in the US rose to historically high levels; and it's difficult to forget the CAN-SPAM Act of 2003, which has been so thoroughly unsuccessful that it's garnered the moniker the "You CAN-SPAM Act" by commentators.

Some would argue that unrealistic short titles serve a useful purpose in that they inspire us and provide hope. In the commercial marketplace, though, the FTC would never accept such a rationale. An automobile with numerous safety features could not advertise itself as an "accident elimination" vehicle unless the manufacturer could support (or "substantiate," to use lawyer jargon) a claim that few if any drivers would have accidents. The argument supporting regulation by the FTC would be that consumers should be given a realistic expectation as to how much the additional technology reduces the likelihood of accidents when deciding between competing cars, and whether to incur the additional costs that may be associated with the technology.

To a large degree the same is true of proposed legislation, yet bills and laws are never held to the "realistic expectation" threshold of consumer products. If the Prison Rape Elimination Act were perhaps more appropriately named the "Prison Rape Minimal Reduction Act," would it have passed? Would members of Congress, or the public that elects them, have decided that the promised results were not worth the money or that other, perhaps more promising alternatives should be explored? Similar questions could be asked concerning a potentially renamed "Most Children Still Left Behind Act" or a "Spam Away" Act.

So what are the rules that commercial advertisers must live by when they brand their products? The Federal Trade Commission Act requires that products must not be deceptively advertised or marketed. Consumers can be misled by product names (i.e. "Aspercreme" that does not contain aspirin) or product claims (see the "accident elimination" example above). Further, the deception can either be express or implied. Claiming that a product is caffeine free when it actually contains caffeine is a misleading express claim. On the other hand, showing someone squeezing juice from oranges into a container of orange juice that is not fresh squeezed has been characterized as a misleading implied claim. Omitting important facts (or "material facts," in lawyer speak) can also be misleading; for example, claiming that a product is "heart healthy" because fat has been reduced without also disclosing that a significant amount of not so heart healthy sodium was added. Some types of claims, known as puffery, however, don't have to be backed up. These are typically subjective type claims such as "great tasting" or "performance you'll love," for which consumers would not expect objective or scientific support. The overall goal of the FTC's regulatory program is to protect consumers and allow them to make free and fully informed purchase decisions.

If one applies these standards to short titles it seems clear that many make objective, quantifiable claims that could be subjected to regulatory scrutiny, and which would ultimately require proof of the claims' truthfulness. Further, just as is the case with commercial advertising, there is the potential for real harm to consumers: misleading short bill titles might lead to legislation passing that would otherwise not pass. After all, what lawmaker would vote against a bill that promises to "leave no child behind," "save homes" or "eliminate" prison rape. And how much easier is it to oppose a bill that only promises to "reduce" prison rape. Another point of potential harm is that voters might reelect their representatives on the basis of misleading short titles that they have proposed or supported.

As satisfying as it may be for those who desire short title accuracy for bills and laws, don't look for FTC standards on commercial advertisers to be applied to Congress anytime soon. Courts have traditionally held that the FTC has authority only over "commercial" advertising. Commercial advertising has a number of characteristics, not all of which necessarily need to be present. These include: proposing a commercial transaction; reference to a specific product; an economic motivation; or otherwise conceded to be an advertisement. Congressional legislation has at least some semblance of these characteristics -- it often regulates commerce, and incumbent politicians protecting their jobs or their constituencies clearly have other economic components involved. But at the end of the day, courts have typically treated political speech differently than commercial speech and it would likely be difficult for the FTC to assert jurisdiction over short titles even if it were so inclined.

Nevertheless, Congress could easily regulate itself in order to ensure accuracy in a number of ways. A straightforward solution would be to develop a set of standards for short titles that could be implemented into the House or Senate rules. Unfortunately no serious discussion of regulating deceptive short titles for bills and acts has taken place. Since lawmakers continue to mislead both their colleagues and the general public with overly provocative short titles, actions that would be regulated in the commercial sector to protect consumers will continue to remain unregulated in Congress. Therefore, the advice for voters is even more pronounced in the ballot box than it is in the big box (store) -- caveat emptor -- let the buyer beware.

For more information on how short titles for bills and acts mislead lawmakers and the general public, visit www.misleadinglaws.com. Also, for more information on how the FTC polices deceptive advertising, read their Policy Statement on Deception.

Brian Christopher Jones is a postdoctoral research fellow at Institutum Iurisprudentiae, Academia Sinica. He has a PhD in Law from the University of Stirling and has published numerous articles on how short bill titles affect lawmaking and the legislative process.

Randal Shaheen is a partner at Venable, LLP. He is a graduate of Harvard Law School and specializes in providing counseling on advertising law to numerous nationally recognized brands. Mr. Shaheen is also an editor at All About Advertising Law.