Frank Fazio, a disgruntled iPhone 4S user from New York, recently filed a federal class action lawsuit against Apple in California, alleging that the Siri feature of the iPhone 4S does not work as advertised. For those of you who still use pay phones, Siri is a virtual assistant that uses voice recognition to answer questions and perform tasks that would otherwise require typing, such as making calls, sending text messages, scheduling meetings, and getting directions. Mr. Fazio alleges that he purchased an iPhone 4S in November 2011 based on representations made by Apple regarding the Siri feature but began noticing problems right away. When he asked Siri for directions, for example, “Siri either did not understand what [he] was asking or, after a very long wait time, responded with the wrong answer.
From Now On I Will Call You Lead Plaintiff. OK?
Apple has promoted the iPhone 4S in several television and web-based ads showing Siri performing useful functions for its users. In one such ad, a ubiquitous thirty-second spot entitled “Road Trip,” a young couple on a cross-country road trip is shown using Siri to help navigate their journey, asking questions like: “What’s the best way to Santa Cruz, California?” “Where’s the best barbecue in Kansas City?” and “Is there a rodeo in Amarillo today?” In another commercial, “Rock God,” Siri is depicted facilitating a rock-obsessed teenage boy’s transformation from musical neophyte to lead guitarist in a garage band, responding along the way to verbal commands like “How do I play ‘London Calling?’”, “Tell Julie and Kate that our band is playing at the garage tonight”, “Add Migraine Headaches to my list of band names,” and, ultimately, “Call me Rock God.” In each of the ads, Siri is depicted as “understanding” the user’s speech and replying promptly with content that is on point – e.g., “From Now On I Will Call You Rock God. OK?”
False Advertising Allegations
According to Mr. Fazio, these ads and others like them are misleading and deceptive because they show Siri performing tasks with ease and without error. A user’s real-world experience, he contends, is materially different from that depicted in the ads. In his own case, Siri often did not understand what Mr. Fazio was asking and took a long time to respond. Mr. Fazio alleges that his experience with Siri is not unique and that Apple was aware of Siri’s alleged shortcomings when it began to market the iPhone 4S (as evidenced by Apple’s description of the product as “beta” on its website). He seeks to represent a potentially massive class consisting of everyone in the United States who has purchased an Apple iPhone 4S other than for re-sale.
Assuming that other Siri users are having the same issues as Mr. Fazio, could Apple really be held liable for false advertising? It’s possible, but it would likely require a showing that the issues of which Mr. Fazio complains are not isolated to particular users (e.g., those with heavy accents) or particularly challenging tasks (e.g., “How do I play ‘Ana Ng’”), but are widespread among users and tasks.
When is a Product Demonstration Misleading?
The Federal Trade Commission and National Advertising Division (“NAD”), a self-regulatory program administered by the Better Business Bureau, have held that while a product demonstration in advertising must be truthful and accurate, such demonstrations are permissible provided that the demonstrations: (1) accurately reflect how the advertised product works, (2) do not materially distort the characteristics of the product, and (3) do not use undisclosed mock-ups or potentially embellishing devices to create in the mind of the consumer attributes that the product does not have. See, e.g., FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965), International Home Foods, NAD Case Report No. 3487 (9/1/98).
Challenges to product demonstrations depicted in advertisements often turn on whether a particular result depicted in the ad is achievable by a consumer in an independent test. In an NAD case involving a much different product, the Hormel Foods Corporation challenged commercials that referred to Dennison’s chili as “The Stand Up Chili” and depicted a fork standing up in a bowl of Dennison’s chili. International Home Foods, NAD Case Report No. 3487 (9/1/98). Hormel alleged that Dennison’s claims were misleading because “in every case attempted by [Hormel], the fork toppled over, and failed to stand up.” At both parties’ urging, NAD conducted its own tests and independently determined that a fork does indeed stand up in Dennison’s chili for the duration depicted in the challenged commercials. Based on its own assessment, NAD found that Dennison’s claims were adequately substantiated.
Does Mr. Fazio’s False Advertising Claim Stand Up to the Test?
Were Mr. Fazio’s claim subject to the same standard, it may well fail because achieving the same results depicted in the iPhone 4S commercials noted above is not difficult to do. (Note: there is no rodeo in Amarillo today, and Oklahoma Joe’s BBQ & Catering is apparently has the best barbecue in Kansas City.) However, Mr. Fazio’s claims are brought under California state law, so the general principles of false advertising law may take a back seat to the particular elements of the unfair competition claims under California law. Even under a less-stringent standard, however, Mr. Fazio would have the burden of proving that Apple’s demonstration of Siri was false or misleading, and to do that, Mr. Fazio will likely have to come forward with evidence that Siri fails to work as smoothly as depicted for a large number of iPhone 4S users.
Lessons for Advertisers
It will be interesting to see whether Mr. Fazio’s case survives a motion to dismiss and, if so, what type of evidence he marshals to prove his claims. In the meantime, advertisers should take heed of the legal requirements for product demonstrations in advertisements. In a nutshell, demonstrations must: (1) accurately reflect how the advertised product works, (2) avoid distorting the characteristics of the product, and (3) refrain from using potentially embellishing devices that suggest the product has attributes that it does not in fact have.