4
also considered that affixed to each ad was a small, stick-on note containing what appeared to be
a personalized, handwritten message, with the recipient’s first name and saying, “Try this. It
works! J.”
During the 1980s, after the Federal Communications Commission removed its ban on
program-length commercials, such advertisements, known as infomercials, began to air on
television and radio.
11
Concerned about the increasingly blurred line between advertising and
non-promotional content, the Commission brought cases alleging that deception occurs when
infomercials are presented as regular television or radio programming, such as a news report or
talk show. In the Commission’s first such case in 1989, the Commission challenged a television
infomercial that opened with the statement, “Welcome to ‘Consumer Challenge,’ hosted by
Jonathan Goldsmith,” and went on to describe the program as one that “examines popular new
products for you,” with the help of investigative reporters.
12
It then announced that the day’s
program would investigate a particular brand of sunglasses, posing the question to viewers:
“[N]ew Product innovation or consumer rip-off?” In evaluating the sunglass infomercial, the
Commission asserted that its format was likely to mislead consumers into believing that it was
“an independent consumer program … that conducts independent and objective investigations of
consumer products,” including for the company’s sunglasses. Since bringing that case, the FTC
has charged that numerous other television and radio infomercials were deceptively formatted.
In nearly every such case, the Commission has issued an order requiring a clear and prominent
disclosure, at the beginning of an infomercial and again each time ordering instructions are
given, informing consumers that the program is a “PAID ADVERTISEMENT” for the particular
product or service advertised.
13
11
See Deregulation of Radio, 84 F.C.C.2d 968, 1007 (1981) (rescinding the FCC’s policy
banning program-length radio commercials); Revision of Programming and Commercialization,
Policies, Ascertainment Requirements, and Program Log Requirements for Commercial
Television Stations, 98 F.C.C.2d 1075 (1984) (rescinding the FCC’s policy banning program-
length television commercials).
12
JS&A Grp., Inc., 111 F.T.C. at 523-24.
13
See, e.g., Vital Basics, Inc., 137 F.T.C. 254, 274, 340-41 (2004) (consent); Nutrivida, Inc.,
126 F.T.C. 339, 342-43, 351-52 (1998) (consent); Bogdana Corp., 126 F.T.C. 37, 47, 100-01
(1998) (consent); Mega Sys. Int’l, Inc., 125 F.T.C. 973, 986, 1218-19 (1998) (consent); Olsen
Labs., Inc., 119 F.T.C. 161, 167, 214 (1995) (consent); Wyatt Mktg. Corp., 118 F.T.C. 86, 94,
113-14 (1994) (consent); Del Dotto Enters., Inc., 117 F.T.C. 446, 452-53, 466 (1994) (consent);
Synchronal Corp., 116 F.T.C. 989, 1002-03, 1045 (1993) (consent); Michael S. Levey, 116
F.T.C. 885, 900-01, 950-51 (1993) (consent); Nat’l Media Corp., 116 F.T.C. 549, 559, 582
(1993) (consent); CC Pollen Co., 116 F.T.C. 206, 209, 239-40 (1993) (consent); Nu-Day Enters.,
Inc., 115 F.T.C. 479, 483, 488-89 (1992) (consent); Twin Star Prods., Inc., 113 F.T.C. 847, 852-
53, 862 (1990) (consent); TV Inc., 113 F.T.C. 677, 679, 693 (1990) (consent); see also FTC v.
Direct Mktg. Concepts, Inc., 648 F. Supp. 2d 202, 209, 211 (D. Mass. 2009) (noting parties’
stipulation to an injunctive provision addressing deceptive formats), aff’d, 624 F.3d 1 (1st Cir.
2010).