Today, Incipio introduced its new "Fetch Case" (a phone case with a bone attached to it so "your best buddy will bring your phone to you whenever you need it") and HelloFresh touted its newest meal planning kit, the "unicorn box" (filled with glitter and frosting to "help you capture the perfect Instagram"). And the list goes on . . . .
Companies have joined in the spirit of April Fools' Day by pranking consumers with ads for products or services that they do not actually offer. But what are the legal implications? Do particularly gullible consumers have a remedy?
Under both federal and state law, it can be a deceptive practice to advertise products or services that are not actually being offered for sale. Promoting a product that's not available, or offering one product with the intent to sell someone another product, can even be considered a bait-and-switch.
Whether these April Fools' ads are technically deceptive may come down to whether (and how quickly) consumers get the joke. Many states analyze violations of their deceptive acts and practices statutes based on whether a "reasonable consumer is likely to be misled." However, in some states, advertisers can be liable for false advertising if even the most ignorant and unthinking of consumers is confused.
The starting point for the analysis then, is whether a reasonable consumer -- or even any consumer -- is likely to be misled by these all-in-good-fun pranks -- particularly in light of the fact that it's April Fools' Day? Are the ads obviously jokes? If not, the next question to ask is how long will it take for consumers to learn that their legs are being pulled? The more that consumers are drawn in, and the more that they have to do to learn what is going on, the more likely a consumer may feel that he or she was truly misled. For example, will consumers quickly realize that they are being tricked?
Although April Fools' ads are intended to be fun, they are likely still going to be considered advertising. So, even when making a joke, it's important to consider how far to go leading consumer down that road. While a quick laugh may not raise eyebrows, promotions that trick consumers into sharing personal information, calling 800 numbers, or taking other action may be seen as going too far.
At the end of day, it may very well be that the funnier the promotion, the less likely that someone will take it the wrong way.
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.