Last year, one of my favorite television commercials consisted of a You Tube-style video (complete with amateurish, hand-held and grainy footage) of an impossibly vertical sand dune, somewhere in the
desert, with a dune buggy racing up the side of the dune.
The dune buggy gets stuck halfway up the hill — not
enough horsepower, not enough torque.
All is lost — until a Nissan Frontier pickup truck
comes out of nowhere and, quite improbably, roars at an
extremely high speed straight up the dune, pushing the
dune buggy all the way up and over the top. Spontaneous cheering erupts from bystanders off screen as the
truck circles back and parks at the top of the dune, staring down at the camera like a victorious superhero.
When I first saw the commercial, for 30 seconds I
wasn’t sure if it was real, but once I thought about it, it
became obvious to me that it was just a humorous exaggeration on the part of Nissan. The truck manufacturer
was not seriously telling me that — in real life — that
truck actually could do that. It was eye catching for sure,
but to me it wasn’t an actual advertising claim.
That, however, is not how the Federal Trade Commission (FTC) saw it.
According to a recently filed FTC complaint, Nissan
violated the FTC Act by misrepresenting the capabilities
of the Frontier pickup truck. In truth, the agency said,
the sand dune actually was not as steep as it looked in
the video and the truck had been mechanically assisted
in its sprint to the top of the hill thanks to a cable hid-
den under the sand. It was the cable that had pulled the
truck and the dune buggy up the slope. “Special effects
in ads can be entertaining,” the FTC said, “but advertis-
ers can’t use them to misrepresent what a product can
There was a super on screen during the ad that said:
“Fictionalization. Do Not Attempt.” Didn’t that solve
the problem? No, the FTC said. It was too small, it was
only onscreen for three seconds, and it only appeared at
the beginning of the spot (prior to the truck’s “heroics”)
rather than during them. Also, the voiceover had said:
“The mid-size Nissan Frontier with a full-size horsepower
and torque,” thereby referencing the truck’s torque as the
point of the ad.
The FTC also sued the ad agency that created the
spot, TBWA Worldwide, alleging it “knew or should
have known” that the truck’s capabilities were misrepre-
sented. Both Nissan and the ad agency agreed to consent
orders to not make such misrepresentations again.
What does this mean for you? First, never assume
that just because you and your advertising agency think
something is obviously an exaggeration that the FTC
will agree. The agency may take the position that con-
sumers, or a material number of them, will take the ad
literally. In this regard, it would be interesting to survey
pickup truck purchasers to find out what their takeaway
is from watching the sand dune commercial.
Second, never assume that a special effect you use,
thanks to the magic of digital video editing, necessarily
will be understood by all to be a special effect. The FTC
may take the position that some consumers will think
Third, if you’re staging an event for your ad but
you’re filming it so it looks like it’s an amateur You Tube-
type video of a real-life event, be careful. Under the law,
product demonstrations need to be real and un-aided. In
an ad, a product must perform in an unaltered state. If a
special effect is used, that should be disclosed.
Here, the FTC considered a commercial in which the
voiceover boasted about horsepower and torque while
the video depicted so much horsepower and torque that
the truck could rocket up the dune. Perhaps a more
prominent super — on screen for longer — or a voiceo-
ver disclosure would have made a
difference for the FTC.
Nowadays, special effects using
digital video editing are extremely
common and cheap. As special
effects make their way into ad-
vertising (and particularly into
advertising that is made to look
like an amazing amateur video),
legal issues such as these are going
to crop up with the FTC and other
Does the ordinary consumer
understand it’s just a fantasy? More
importantly, does the FTC believe
the ordinary consumer understands
it? If there’s any doubt, consult
qualified legal counsel. ■
The Dark Side of the Dune
By Gregory J. Sater