Expert: Peter Gabany - 10/22/2004

Question
I am trying to explain to a friend that something she thinks is false advertising is probably not.

The issue is that a toy company has produced a playset, and has pictured figurines on the box that can be purchased separately.  However, the figurines are not being produced after several months, presumably because sales are not going as well as the company would like.

This friend is crying "false advertising," but I think they made prototypes and just decided not to make them after all.  Is this false advertising in the legal sense of the term, as in it could be prosecuted?

Answer
I'm with you. The manufacturer probably had the intent to manufacture the figurines at the time of advertising or at least it would presumably be argued this way. The indication that the market went south was not within the control of the manufacturer - therefore I doubt fault could befall them.

If your friend had booked a Doctor or hair appointment and took ill preventing her/his attendence - would it be right for the Doctor or hair stylist to charge her? While the two instances are different it should illustrate that there was no malicious intent upon placing the advertisement or booking the appointment - therefore why would there be a penalty.

One last remark - the manufacturer could have/possibly did make the explanation known to the consumer via their website - as I'm certain your friend would have notified the Doctor or hair salon that he / she couldn't make their appointment. This is just good practice.

However - this is not a good Brand practice and undoubtedly your friend will think twice about purchasing from that manufacturer again.

Everyone wants to litigate. Thankfully legal fees are set high.

Pete