Monday, March 28, 2005

“No Alcohol Added”

In 1991, I got involved as an expert witness in a law suit in which a group of ethanol producers sued a host of big oil firms on anti-trust grounds arguing, in part, that deceptive advertising by oil companies employed “point of sale” (POS) signs such as “No Alcohol Added!” or “No Alcohol in our Gasoline!” or “Alcohol Free!” which, in the opinion of the plaintiffs, disparaged gasohol and this practice had harmed them by reducing the demand for their product. Naturally, if gasohol is as good as gasoline, then such POS advertising becomes deceptive for the implication that adding alcohol (ethanol, specifically) is harmful would be false. The Title link will take you to an appeals court ruling upholding a district court’s ruling that the plaintiffs “lacked antitrust standing.” All but one of the defendants had gone broke at the time of this appeals court ruling.

That was fourteen years ago but it seems that the oil companies keep up such POS advertising practices. At a site called The Straight Dope one “Danglin' Dave” noted he had observed the POS "Alcohol Free!" at a service station. Nevertheless, while most of the plaintiffs in the suit I was involved in went broke, gasohol continues to be sold.

The lawyers for the oil companies deposed me for a total of 24 hours over a four day period, which seemed a bit excessive (but was lucrative since they paid for my time). Their goal, obviously, was to get me to contradict myself or to get me to make a mistake and say something damaging to the gasohol people. It almost worked.

The primary focus of the deposition late on the second day concerned the “point of sale” (POS) advertising practice cited above. My claim was, of course, that this practice was deceptive and the lawyer questioning me was determined, it seemed, to show that this was an absurd claim. Naturally, I didn’t want him to succeed at that.

A POS sign might say that some product has some property (the positive case) or that it doesn't have some property (the privative case). How such a sign will be interpreted will depend on what consumers believe about the desirability of the product's having that property. I suspect that consumers generally would not then have had strong beliefs one way or another as to the value of adding alcohol to gasoline.

On first inspection, these POS messages might seem simply to communicate information in a relatively innocent fashion. That is the usual defense of advertisers – “We’re just providing information.” However, in exclaiming that one's gasoline contains no alcohol, one implies that it is a desirable attribute of one's gasoline that it does not contain alcohol and this in turn implies that it is less desirable or even undesirable for gasoline to contain alcohol. Absent a strong belief that adding alcohol to gasoline is desirable, this sort of claim could lead consumers to lose confidence in their belief or even come to believe that alcohol should not be blended with gasoline, for consumers can be expected to rely on the fuel industry for expert views on fuel products. Interestingly, some of the oil companies sold both gasohol and gasoline at filling stations in some areas but in others they sold only gasoline and put up signs that disparaged gasoline. Does the word “hypocrisy” come to mind?

Having gotten me to commit to the view that these POS were deceptive, my interrogator then moved to product labeling practices stating that a deodorant is “scent free” or that a particular brand of coffee is “caffeine free” or that certain jars of peanuts were “salt free” and the like and asked whether these too are deceptive in nature. This was, I realized, the crux of the matter. It struck me that it would be silly to say that these claims were seriously deceptive. Yet being identical in “gist” to the “no alcohol added” POS signs, I was committed to the view that these claims were also deceptive and so I said they were. That admission would count as a reduction ad absurdum of my position. I conceded that if a consumer knew nothing about the health risks of adding a scent to a deodorant, or of consuming caffeine or salt that these labeling statements would imply that it is harmful to add a scent to a deodorant or salt to peanuts. The caffeine case is a bit different since coffee contains this ingredient naturally but the implication is the same. However, for most people scents, caffeine, and salt are not harmful, though the caffeine and salt cases are a bit controversial.

The lawyer clearly thought he had me pinned down. However, I pointed out that the fact that retail stores selling scent free deodorant or caffeine free coffee or salt free peanuts usually also sold scented deodorants, regular coffee, and salted peanuts and claimed that this countered the implication that scents, caffeine, and salt must be harmful or undesirable in some way since both types of products were being endorsed. I then went on to say that at the stations the defendants sold gasohol alongside gasoline even if these stations put ups signs on the gasoline pumps saying “no alcohol added” this would not, in this context, disparage gasohol because the fact that they were selling it constituted an endorsement of it. And that was the end of that.

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Blogger Valery said...

And do you know that scents can change your mood and emotional state?

6:14 AM


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