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date: 21 January 2020

Abstract and Keywords

This chapter considers how the U.S. law of deceptive advertising embeds within it an extended form of responsibility, making advertisers sometimes responsible for consumers’ mistakes. The chapter justifies this pattern of liability as a division of moral labor that bolsters consumers’ ability to trust the quality of the food supply and the representations made about it. It answers worries about paternalism, arguing that the law is not predicated on distrust of consumers, but facilitates consumer autonomy, permitting consumers to direct their scarce time and energy to projects of their own choosing. The chapter also answers freedom of speech concerns about restricting advertisers’ ability to make factually true representations. It emphasizes that commercial speakers have a special responsibility to ensure accurate uptake by consumers because property law affords commercial producers the ability to exclude consumers and their representatives from verifying speech about speakers’ products for themselves.

Keywords: deception, deceptive advertising, uptake, paternalism, freedom of speech, First Amendment, food and drug, misrepresentation

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