Misleading Advertising: An Under-Utilized Business Litigation Claim That Provides for Potentially Significant Damages Awards

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Misleading Advertising: An Under-Utilized Business Litigation Claim That Provides for Potentially Significant Damages Awards

September 26, 2017

In our capitalistic society, consumers are frequently exposed to advertisements for products and services. Unfortunately, advertisers sometimes make false claims or promises in their advertisements to mislead consumers into purchasing their products or services. For example, these advertisements may falsely tout amazing, “wholesale prices,” or extraordinary health benefits to be gained from the use of a product, thereby luring the consumer into purchasing the product or service on false pretenses. If you, as a consumer, have been misled by a business advertisement, then you may have a legal claim for money damages against the advertiser for misleading advertising. See generally § 817.41, Fla. Stat. (2017).

To establish a violation of Florida’s misleading advertisement statute, a consumer must prove both reliance on the alleged misleading advertising and all elements of common law fraud in the inducement. See, e.g., Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1369 (Fla. 4th DCA 1981). Specifically, a misled consumer must establish the following: (1) the consumer relied on some identifiable, alleged, misleading advertising; (2) the advertiser made a misrepresentation of a material fact; (3) the advertiser knew or should have known of the falsity of the statement; (4) the advertiser intended that the representation would induce the consumer to rely and act on it; and (5) the consumer suffered injury in justifiable reliance on the representation. See id. at 1370.

As an illustration, a company claiming that its products are “All Natural,” when, in fact, the products are filled with synthetic and unnaturally processed ingredients, likely gives rise to a claim in favor of a consumer who relied on that representation and was harmed by the synthetic ingredients in the products. Similarly, a sneaker company likely engages in misleading advertising by claiming that its sneakers actively help consumers burn calories, if there are no studies to confirm the calorie-burning claim and a consumer relies on the representation when purchasing the product.

A consumer who has been misled by an advertisement should act diligently in retaining legal counsel, as he or she has only four years in which to bring his or her misleading advertising claim. Bringing suit against the advertiser who published the misleading advertisement could be well worth the effort: Aside from obtaining actual damages (the purchase price of the product, plus the value of any other damages sustained, such as the compensatory value of a physical injury caused by a related product defect), prevailing in this type of action may result in an award of the claimant’s reasonable attorney’s fees, together with punitive damages—a potentially hefty sum.

A qualified business attorney can help you in all matters of misleading advertising. If you have been misled by a business advertisement, contact a Fort Lauderdale business litigation lawyer at (954) 440-0901 to assist you with your claim. The Carlin Law Firm, PLLC regularly assists consumers with litigating misleading advertisement claims in both state and federal courts.

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