Picture this: you’re viewing today’s Instagram stories when a stray hair lands on your screen. Naturally, you drag your finger across the screen to remove it. Next thing you know, you’re on a website that’s having a sale on Yeezy sneakers. As it turns out, there was never a “hair” on your screen – it was just a thin, curved line. It was literal click-bait, and you took it hook, line, and sinker.
This trick may seem benign, but when this exact stunt was pulled a few months ago by Chinese footwear manufacturer Kaiwei Ni, it caused quite a stir amongst marketers and social media enthusiasts. Aside from the ad’s creative merits, however, the question lingers: what does the law say about such a conniving tactic?
The issue boils down to whether the advertisement is deemed “deceptive.” The FTC defines false and misleading advertising as such that (1) makes a “material” claim or omission that (2) affects consumers’ conduct or decisions and (3) is likely to mislead a reasonable consumer.
The FTC has the right to censor ads that fall under these criteria as well as those which make blatantly false claims. There have been countless lawsuits over the years regarding deceptive advertising, but the factor that distinguishes them from the Instagram hair tactic is the message itself.
Kaiwei Ni’s advertisement may have generated an influx of clicks, but they weren’t precipitated by a material claim or omission. BBDO New York creative director Tom Markham told AdWeek that while the ad may be disingenuous, it doesn’t violate any laws. “Everything is legit – they’ve just added a curved line, which isn’t illegal.”
A counterargument against the ad’s legality is that it’s akin to spam, which can also be struck down by FTC. The fact that the brand effectively paid to dupe uninterested people into visiting their site may advance the case that it violated the CAN-SPAM Act which aims to protect consumers from material they don’t want to see. The act prohibits “the transmission, to a protected computer, of a commercial electronic mail message, or a transaction or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading” [emphasis mine].
Unless we now consider pixels aligned in the shape of a hair as “information,” Kaiwei Ni is free to make as many cringy ads as they want. Buyer (or scroller) beware.
It should be noted that although the chances of FTC intervention here are slim, Instagram still took independent action. A spokesperson for Instagram told The Verge that the ad violated its policies and was removed. Instagram also disabled the account from advertising on the platform again. Talk about karma.
In a digital ecosystem where consumers’ online experience is so littered with ads that they use ad-blocking software, it’s no surprise that brands are pushing ethical boundaries and gambling their reputations to get clicks. And while the FTC isn’t quite up to speed with the next generation of whiz-kids, it’s safe to say you should entrust your online marketing strategy to the pros.