As one of my colleagues remarked to me, “this Decision was written for you to blog about.” Yup, I love it when I get to wear my ad lawyer hat and feminist hat at the same time!
So, at last, after amending its procedures to cover “harmful social stereotyping” back in 2022, NAD has announced the results of its first routine monitoring case based on this addition to the rules. The provision at issue is Section 2.1, which addresses NAD’s mandate to “ resolv[e] complaints or questions from any source involving the truth or accuracy of national advertising.” The updated Section includes the following: “This responsibility includes resolving complaints or questions concerning national advertising that is misleading or inaccurate due to its encouragement of harmful social stereotyping, prejudice, or discrimination.”
At issue here was advertising for a mobile game called Project Makeover, developed and distributed by Magic Tavern, a subsidiary of AppLovin Corporation. The game allows players to solve puzzles and complete challenges to collect in-game currency which can be used to give their characters’ clothes, appearance and homes make-overs. The advertising for the game, as described by the Decision, “depict a female character who faces rejection and ridicule because her physical appearance changes from ‘pretty’ to ‘ugly.’ Notably, the transition to ugly is highlighted by a drastic change in the female character's clothing, hygiene, and make-up. All these physical changes to the female character are accompanied by a drastic visible change in how the male character in the advertising responds to her.” The description of the ads could make your eyes roll right out of your head: in one, a woman depicted as “ugly” loses her divorce trial with her adulterous husband; another shows a woman’s boyfriend running away from her screaming because she looks ugly. The ads also include scenes where the woman, made over with a new short dress, hairstyle, etc, with the help of the game player, wins the man’s approval.
Not surprisingly, NAD determined that these ads include harmful stereotypes and that they “can mislead reasonable consumers as one message conveyed is that to be treated fairly, women must present themselves in a specific, feminine way.” Interestingly, NAD also found that the ads did not reflect the actual gameplay because the game itself doesn’t include all the harmful stereotyping: the ads exploited harmful stereotypes but the game itself apparently does not. As a result, NAD also determined that the ads used a “misleading initial approach” (or, as called by the FTC, a “deceptive door opener”). In other words, because the ads bated prospective customers with stereotypes but the game itself doesn’t trade in them, the ads were deceptive: they promised something not delivered. Notwithstanding the fact that it’s obviously a good thing that the game itself is not filled with the same harmful stereotypes contained in the ads, the fact they were used in the advertising “simply to attract attention” gave NAD another basis for complaint!
The advertiser represented that it discontinued its own use of the challenged advertising so NAD didn't have to recommend its discontinuance. However, and interestingly, NAD recommended that Magic Tavern take steps to request removal of the discontinued advertising from unaffiliated third-party websites, i.e., the Youtube channels of apparently unaffiliated creators who were posting the ads, or portions of them. As NAD noted “once a company becomes aware of third-party advertising making inaccurate claims about its product, it should take immediate and effective action to have the unauthorized use of the claim effectively discontinued.” This is not what a regulator would necessarily require of an advertiser in the absence of control. But it certainly could be a best practice, particularly if the third party advertising is misleading and harmful.
Case Report #7185 (July 2023)