In 1965, TV spots ran for 60 seconds . . . mostly in black & white.
A first-class stamp cost five cents. (Remember mail?)
Bonanza ruled the airwaves, while the Marlboro Man wrangled with the Surgeon General.
Skirts got shorter. Hair got longer. Students staged sit-ins. Hippies turned on.
And two young attorneys opened for business in a Van Nuys, California storefront.
From Chuck Manatt and Tom Phelps’s modest beginnings, Manatt has grown to hundreds strong and the firm has become a nationally recognized leader in advertising, marketing and media law.
Landmark cases from 1965 still influence marketing law today, serving as the foundation principles that guide the industry in a digital, social, and consumer-driven age.
Back then, the country was rife with change. Lyndon Johnson introduced Medicare. Martin Luther King, Jr. led the march in Selma and the Voting Rights Act became law. Nightly news delivered to the dinner table the horrors of the nascent Vietnam War, dubbed “the Living Room War.”
The social climate was changing, and with it marketers began to push the limits of their advertising claims, all of which prompted the landmark case of FTC v. Colgate Palmolive Co. Colgate claimed in a TV spot that its Rapid Shave shaving cream could soften “even tough dry sandpaper,” and provided apparent visual proof by shaving what appeared to be sandpaper on which Rapid Shave had been applied. Except it wasn’t sandpaper, but sand sprinkled on a pane of glass. The Federal Trade Commission had had enough of dubious ads, and it filed a complaint alleging that the spot materially misrepresented the product and was therefore deceptive and misleading. Colgate countered that the shaving cream could soften sandpaper sufficiently to shave if left on long enough, and that the normally quiescent FTC had over-stepped its authority. The case reached the Supreme Court which issued a ruling that remains a central tenet of advertising law that seems self-evident today: “It is a material deceptive practice to convey to television viewers the false impression that they are seeing an actual test, experiment or demonstration which proves a product claim when they are not because of the undisclosed use of mock ups.” Thereafter and now, the familiar “dramatization” disclaimer has become necessary and commonplace.
The Commission took another step forward in 1965 when it charged that Libby-Owens-Ford, the glass supplier to General Motors, had misleadingly mocked up its glass in a series of TV spots to demonstrate the superiority of its safety glass used in GM autos, as compared to the glass used in non-GM cars. GM featured the same altered glass demonstrations in its own ads on two occasions. LOF argued that it acted in good faith, that it directed its ad agency to present a fair commercial, that it was unaware that the glass was altered in any way, and that the producer of the spots was an independent contractor for whose acts it was not responsible. The 6th Circuit affirmed the Commission’s position and announced that an advertiser “may not delegate its advertising [responsibilities] to an independent contractor and escape liability for the acts of its advertising agency and film producer in advertising their products.” This ruling also remains a central tenet of advertising law today.
The FTC shaped another enduring principle that year regarding “puffery,” a legal defense that has often been described as the advertiser’s right to lie its head off. The FTC made clear that while a seller “has some latitude in puffing his goods, he is not authorized to misrepresent them or to assign to them benefits they do not possess.”
Times change, of course. In 1965, the Beatles rocked Shea Stadium—long before iTunes (and before two million downloads of Beatles songs in the first week after their 2014 iTunes debut).
Walmart and Target were just three years old, budding regional chains with a handful of stores. Amazon was 30 years away . . . now it can deliver in just two hours.
Back then, three networks brought the world into our living rooms, sometimes in living color. Today, Netflix, Hulu and Amazon are reinventing TV . . . alongside CBS.com, NBC.com, and ABC.com.
And no one could have predicted then that 50 years later advertisers would grapple with the challenge of applying decades-old advertising law principles to media and technology that were not even imagined in 1965 . . . or that a small storefront law firm would become the enterprise that shows them the way.