Business owners often make difficult decisions that affect sales and revenues. This is especially true whenever a law that applies to the business will hit the owner in the pocketbook. The owners must decide whether to comply with it or not. Obviously, the overwhelming percentage do opt for compliance, but those who don't often defend their actions by arguing how much their sales would drop as a result.
I call this the "Crunchy Frog" defense, and unfortunately, it just doesn't work. "Crunchy Frog" was the name of a sketch featured on the great TV show, "Monty Python's Flying Circus." In it, the police are questioning Mr. Milton, the owner of a candy company that manufactures a box of chocolates, one of which is called Crunchy Frog. The officers inquire about it, which results in the following exchange:
Policeman: Am I right in thinking there's a real frog in here?
Milton: Yes. A little one.
Policeman: What sort of frog?
Milton: A dead frog.
Policeman: Is it cooked?
Milton: No.
Policeman: What, a raw frog?
Milton: We use only the finest baby frogs, dew picked and flown from Iraq, cleansed in finest quality spring water, lightly killed, and then sealed in a succulent Swiss quintuple smooth treble cream milk chocolate envelope and lovingly frosted with glucose.
Policeman: That's as maybe, it's still a frog.
Milton: What else?
Policeman: Well don't you even take the bones out?
Milton: If we took the bones out it wouldn't be crunchy would it?
Mr. Milton is then told that he must delete the words 'crunchy frog', and replace them with the legend 'CRUNCHY RAW UNBONED REAL DEAD FROG.' He is then asked about the ingredients of chocolate called "Ram's Bladder Cup":
Milton: We use choicest juicy chunks of fresh Cornish ram's bladder, emptied, steamed, flavoured with sesame seeds whipped into a fondue and garnished with lark's vomit.
Policeman: Lark's vomit?
Milton: Correct.
Policeman: Well it don't say nothing about that here.
Milton: Oh yes it does, on the bottom of the box, after monosodium glutamate.
Mr. Milton was then informed that the box should bear a large red label saying "WARNING: LARK'S VOMIT." He responded to both directives by arguing: But our sales would plummet! He was then hauled off to jail.
For advertisers, the lesson of the Crunchy Frog sketch should be abundantly clear. Although it may be tempting to avoid describing a less savory aspect of your product, if the law requires it, you need to do so, regardless of how it may affect your sales. The FTC and class action attorneys are quick to jump on anyone who fails to accurately describe material aspects of their product. The word "material" in this context means a description that, if included, would directly affect a consumer's decision to purchase the product.
Just as a consumer would be less likely to purchase a chocolate if they were told it contained a raw unboned dead frog, the fact that they will be charged $90.00 per month for something unless they cancel within ten days is also likely to affect their decision. If you leave that part out for the sake of your sales, you'll probably wind up answering for it in court.
The litigation in this area revolves around whether the description that was left out was material or not. If it isn't material, it becomes a case of "buyer beware." As the policeman stated at the end of the sketch:
"If only the general public would take more care when buying its sweeties, it would reduce the number of man-hours lost to the nation and they would spend less time having their stomachs pumped and sitting around in public lavatories."
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