Advertising can be funny sometimes, or odd, or a bit like faith or all of these. Let me explain what I’m talking about. A few months ago, in perhaps one of the strangest advertising law tales I’ve seen in awhile (or ever), I wrote about the U.S. FTC commencing proceedings against the makers of “Your Baby Can Read!” products (see: here). These products, which apparently include learning programs for toddlers such as DVDs, ‘lift-a-flap’ books, word cards, etc. and have been widely marketed on the Internet, are meant to teach young adults, er babies actually, between the ages of three months and five years to read.
The claims, if true, have many hallmarks of purported credibility, including “scientific studies”, a founder with a Ph.D and other spiffy credentials. Yep, babies can read say the makers or at least be taught to read if you buy the books.
No said the FTC – that’s nonsense. Babies can’t read and you haven’t shown that they can. The FTC, in its complaint and press release last summer argued, among other things, that the Babies Can Read! marketing efforts, which led to apparently more than $185 million in sales (and at the time a corresponding $185 million judgment against the makers alas), constituted deceptive practices that violated section 5 of the FTC Act and unlawful expert endorsements. According to the FTC’s case, Baby Can Read!’s founder Robert Titzer Ph.D failed to conduct adequate research to back up these rather astonishing claims.
Some months later, I was surprised but amused to learn that Babies Can Read! appears to be thriving down under (see e.g.: Is your baby ready to read at three months?). According to media reports today – yes there have been a few articles today – these teach-your-baby-to-read products that retail for up to $300 are still being sold in some quantities, with one online distributor claiming more than 14,000 community members (whatever that means).
One mother interviewed said she was “absolutely over the moon” after using the program daily for 1 ½ hours with her son and the product is apparently being used in childcare centers in Australia. One academic, however, scoffed: “you can train babies, like you can train a dog, to respond to certain words, but why would you want to do that? … reading is not about memory. It’s an intellectual process, it’s about understanding”. Now I’m no baby expert, but all this seemed, well, like a tale you tell to babies. But no, apparently it’s true, more than $100 million in sales of ‘lift-a-flap’ books and other products to teach babies to read.
With this bit of background explained, it seemed to me that the Babies Can Read! case and evidently continuing vitality down under was funny, odd and like faith in that, sometimes, advertising needs absolutely no proof whatsoever to sell – and to sell a lot in this case.
If you’ve read this far, you’re probably wondering if there’s actually any law in this post. Ok, here it is: in Canada, misleading advertising is primarily governed by the Federal Competition Act and provincial consumer protection legislation, which includes requirements for performance claims (see: misleading advertising) and can lead to penalties of up to $10 million. I’m betting though that I’ll have to wait quite a while for a Canadian case as odd as the Babies Can Read! case.
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