A recent perusal of some developments in the ghastly realm of false advertising suggests several conclusions:

1. Too many merchants and vendors traffic in deceit, misrepresentation, and out right lies in order to separate trusting customers from their money.

2. The law is a pretty blunt instrument when it comes to controlling this. Too many tricks and tricksters, seldom enough evidence.

3. The ancient common law rule of “Let the buyer beware!” is less a warning to gullible purchasers than it is a green light for unethical business practices.

4. For every instance of dishonest advertising that is stopped, there are probably hundreds that slip by.

5. Anti-government types looking for legitimate uses of taxpayer funds for critical government regulation of private enterprise should start here.

For example:

• In Tiffany Inc v eBay Inc, eBay may yet avoid legal consequences for what appears to be a clear example of  misleading advertising. A court had found it innocent of the legal definition of the offense, because eBay was clever: knowing it was auctioning both Tiffany knock-offs and the genuine stuff, it still provided links to both on Google ads proclaiming that one could “find tiffany items at low prices.” This isn’t technically false, the Second Circuit Court of Appeals found, because you could “find Tiffany items”…though you could also find counterfeit Tiffany items using the same link. In reversing a lower court ruling exonerating eBay, the Court wrote that an online advertiser need not cease its advertising for genuine items just because it knows that a substantial number of the items bearing the same mark are probably fakes, but it shouldn’t leave a potential purchaser to believe there are no fakes. A disclaimer seems to be called for, and now the lower court will decide whether eBay should have been able to figure that out itself.

• The conservative radio establishment has been recruited to pitch LifeLock to listeners (other products: “Gotomeeting.com”, Carbonite, and gold, gold, and more gold.) The talk show hosts make sense as pitchmen (and pitchwomen, in the case of Laura Ingraham) for advertisers, because they inspire a high level of trust in those who don’t regard them as ranting, doctrinaire extremists. It doesn’t make sense for the hosts to do the ads themselves, however, unless they have researched the products extensively. They put their credibility on the line every time they endorse such products. The identity theft company LifeLock, for example, which Rush Limbaugh and others enthusiastically praise (for a fee), recently paid a 12 million dollar settlement to the Federal Trade Commission and 35 states for making multiple claims it couldn’t back up, such as suggesting that it guards against all forms of identity theft. LifeLock also agreed not to overstate the risks of identity theft, which, according to what I heard from Rush and Mark Levin (to name just two), was frighteningly high.

I think if a public figure has endorsed a product that is subsequently shown to have engaged in false claims, that individual has an obligation to let his trusting audience know that he or she may have misled them. An apology would be appropriate to.

Careful, Rush.

[Ethics Alarms thanks to the Troutman Sanders newsletter for information about these cases.]