Federal Trade Commission (FTC) Filing on Deceptive Gun Advertising Petition

Before The Federal Trade Commission Petition of the Center to Prevent Handgun Violence; American Academy of Pediatrics; American Public Health Association; American Association of Suicidology; American Academy of Child and Adolescent Psychiatry; and National Association of Children's Hospitals and Related Institutions.

The Center to Prevent Handgun Violence ("Center"), American Academy of Pediatrics ("AAP"), American Public Health Association ("APHA"), American Association of Suicidology ("AAS"), American Academy of Child and Adolescent Psychiatry ("AACAP"), and National Association of Children's Hospitals and Related Institutions ("NACHRI") hereby petition the Federal Trade Commission (FTC or Commission) to issue an order prohibiting certain firearms' manufacturers from publishing advertisements which suggest to consumers that the purchase of a handgun will increase the safety and security of the consumer and his or her family in the home.

The Center, chaired by Sarah Brady, is a non-profit organization, working to reduce firearm deaths and injuries through education, research and legal advocacy. Through its Legal Action Project, the Center advocates legal principles that will reduce gun violence.

The AAP is an organization of 50,000 pediatricians dedicated to promoting the health, safety and well-being of infants, children, adolescents and young adults.

The APHA is a 124-year-old membership organization that represents over 50,000 public health professionals at the national and state affiliate levels. The APHA works to protect and promote personal and environmental health by focusing on the interrelationship between health and quality of life and on solving technical problems related to health.

The AAS promotes research, public awareness programs, education and training for professionals and volunteers in the understanding and prevention of suicide.

The AACAP is an association of over 5,900 child and adolescent psychiatrists concerned with the prevention, diagnosis and treatment of developmental and psychiatric disorders in children, adolescents and their families.

The NACHRI is a membership association of children's hospitals, large pediatric units of medical centers and related organizations that acts as a collective voice for health systems devoted to the well-being of America's 70 million children and their families.

Introduction

A handgun and bullet sit unsecured on what appears to be a nightstand table. Next to them are a photograph of a woman with two young children and an alarm clock showing the time as 11:26 p.m. The headline reads "Tip the odds in your favor." The text addresses those who are "considering a handgun for personal protection . . . . " (Figure 1).

This is a description of an advertisement for the Beretta Model 86 handgun, a .380 semi-automatic pistol that holds nine bullets at a time. The ad, invoking the late hour and depicting a young family, is an obvious attempt to appeal to the consumer's desire to protect self and family from criminal attack. The ad suggests that by buying the featured weapon, the consumer will increase the safety and security of himself and his family in the home, i.e. he will "tip the odds" in his favor and against a potential criminal invader. What the ad fails to disclose, however, is that rather than increasing a family's safety, the introduction of a gun into the home actually makes it more likely that those living there will die at the hand of a gun. Compounding this omission, the ad appears to endorse leaving a gun and ammunition unsecured and in plain view, even in a home with young children.

By this petition, the Center, AAP, APHA, AAS, AACAP, and NACHRI request that the Commission order firearms' manufacturers to refrain from publishing advertisements that mislead consumers regarding the risks associated with handgun ownership in the home. These ads are both "unfair" and "deceptive" within the meaning of Section 5 of the Federal Trade Commission Act.

I. Many Handgun Advertisements Falsely Promise Enhanced Personal Security in the Home.

Beretta is not alone in appealing to the public's fear of crime and suggesting that the purchase of a firearm is an effective means of increasing security in the home. As the following descriptions show, several firearms manufacturers have used this message in an attempt to lure unsuspecting consumers to buy their guns.

— In an ad that appeared in the southeast regional edition of the Ladies' Home Journal, a mother tucks her child into bed, a dark window in the background. The headline reads "Self-protection is more than your right . . . it's your responsibility." The text of the ad recommends a Colt Semiautomatic pistol "for protecting yourself and your loved ones," and compares a firearm to a home fire extinguisher, stating "it may be better to have it and not need it, than to need it and not have it." (Figure 2).

— A revolver with a barrel only 1 1/8" long is shown in actual size inside a woman's purse. The key chain next to the gun reads "Mom's Taxi." The headline boasts "Purse/sonal Protection!" The text notes that the gun is "a favorite with the ladies." (Figure 3).

— A Lorcin .380 pistol is shown atop a VOGUE magazine on a desk next to a photograph of three young children. The text describes the gun as "an above average means of self protection." (Figure 4).

— A Beretta Model 85F handgun is shown over the headline "Homeowner's Insurance." The text refers to "protecting what's yours" and to "family protection." (Figure 5).

— A North American Arms revolver is shown against a map highlighting the route to Las Vegas. The headline reads "'Keeping the Odds' in your favor." (Figure 6).

— A revolver is pictured in an open drawer under the headline "'Good Night' with Taurus." On top of the table sit a pipe, an Agatha Christie mystery novel and a pair of glasses. The legend "Remember, always secure your firearm under lock and key" appears in extremely small letters at the bottom of the ad. (Figure 7).

— An ad for the Sig Sauer P230 handgun touts it as "Your Safest Choice for Personal Protection." Although the ad states that "a prime consideration in your purchase should always be the gun's inherent safety," no where does it acknowledge the inherent dangers of bringing a gun into the home. (Figure 8).

These ads are unfair and deceptive because they suggest to the consumer that the purchase of a handgun is an effective means of providing for self- and family- protection without warning the consumer that the introduction of a handgun into the home actually places the home's occupants at an increased risk of death by gun. Moreover, many of these ads appear to endorse ownership of a handgun by people with young children, with no acknowledgment of the special dangers such weapons may pose to young children, especially if the gun is not properly stored.

II. The Presence of a Handgun in the Home Actually Increases the Risk of Gun Injury or Death for the Residents of the Home.

According to the U.S. Bureau of Alcohol, Tobacco and Firearms, there are currently more than 222 million firearms in the possession of private citizens in this country, including 76 million handguns. Many of these gun owners believe that handguns are an effective means of self- and home-defense. One study reported that "three quarters of gun owners keep them at least partly for protection," and that "[t]he single most common reason for keeping firearms given by owners of handguns . . . "'is self-defense at home.'"

At the same time, many gun owners discount or fail to recognize the risk the guns in their home pose to themselves and their families. For example, one study showed that half of gun owners fail to store their guns under lock and key, that half of those who say they own handguns for protection keep them loaded some or all of the time, and that almost one third of gun owners with children in the home store their weapons loaded. And, contrary to what many gun owners may believe, a recent study showed that children as young as 3 or 4 years of age have the hand strength to fire most handguns.

But, as the scientific evidence shows, the risks posed by a gun in the home are very real. Several studies have shown that rather than increasing the personal security of the residents of a home, the introduction of a handgun actually makes it more likely that the residents of that home will die by gunfire. In two studies published in The New England Journal of Medicine, Dr. Arthur Kellermann and his colleagues found "strong evidence that the ready availability of guns increases the risk of suicide in the home," especially if the guns are kept loaded or unlocked, and that "[p]eople who keep guns in their homes appear to be at greater risk of homicide in the home than people who do not." Specifically, Kellermann found that keeping a gun in the house increased by 2.7 times the risk that a resident would die in a homicide and by 4.8 times the risk a resident would commit suicide.

Kellermann also found no "evidence of a protective effect of keeping a gun in the home, even in . . . cases that involved forced entry." Indeed, in another study, Kellermann found that it is 43 times more likely that a gun kept in the home will be used to kill a household member or a friend or acquaintance of a household member than to kill an intruder. These studies make clear that rather than improving the safety of the residents of a home as the challenged advertisements suggest, bringing a firearm into the home actually makes those that live there less safe.

Despite the scientific evidence regarding the real dangers posed by guns in the home, some have suggested that gun ownership should be encouraged because guns are used more frequently in self-defense than in crime. But, the best estimates of the number of times guns are used in a defensive manner are far outnumbered by the deaths, injuries and victimizations inflicted by guns.

In 1993, there were approximately 40,000 gun deaths in the United States, including homicides, suicides, and unintentional shootings. In addition, each year, there are over 900,000 criminal victimizations with guns and an estimated 100,000 non-fatal gun injuries requiring emergency room care.

In contrast, in the National Crime Victimization Survey (NCVS), the Bureau of Justice Statistics reports only about 85,000 annual civilian defensive uses of guns. A study analyzing the NCVS data from 1987 through 1990, concluded that an average of less than 65,000 crime victims, or fewer than 2 victims in 1000, defended themselves with a gun in each of those years. And, another study reported that the use of a firearm in self-defense during the commission of a violent crime is associated with a seven fold increase in the likelihood that the defender will be attacked with a gun.

The data most often cited to support the theory that the protective benefits of guns outweigh the harm they cause is put forth by Professor Gary Kleck. Kleck claims that firearms are used as many as 2.5 million times annually by law-abiding citizens to defend themselves against criminal attack. But Kleck's conclusion has been roundly criticized by the scientific community. Kleck's data are based upon a privately commissioned telephone survey of about 5,000 respondents. From the relatively small number of annual defensive uses reported by these respondents (63), Kleck extrapolated a national rate. But because each person reporting a defensive gun use in Kleck's survey represents a large portion of Kleck's national estimate of 2.5 million defensive uses annually, even a small number of people who misunderstood or inaccurately answered the survey question could cause a relatively large discrepancy between Kleck's estimate and the true frequency of defensive gun use. In contrast, the NCVS employs an in-person interview of a sample of about 60,000 households, conducted every six months, making it relatively immune to large changes in estimates under different assumptions.

As one researcher put it, "Kleck's conclusions rest on limited data. Small changes in the procedures would produce large differences in the findings. The estimates are questionable and it appears unwise to place much weight on them." On balance then, the great weight of scientific data support the view that a firearm in the home confers more risk than benefit upon those who reside there.

III. The Identified Ads Are Both Unfair and Deceptive.

The Federal Trade Commission Act (the Act) declares all "unfair or deceptive acts or practices in or affecting commerce" to be unlawful. The Act empowers the FTC "to prevent persons, partnerships, [and] corporations . . . from using . . . unfair or deceptive acts or practices in or affecting commerce."

1. The Identified Ads Are Unfair.

An advertising practice is considered "unfair" if it may cause unjustified consumer injury. A consumer injury is unjustified if it (1) is substantial; (2) is not outweighed by any benefits it bestows upon consumers or competitors; and (3) could not have reasonably been avoided by the consumer. In addition, a finding that a particular advertising practice is contrary to public policy, as "established by statute, common law, industry practice, or otherwise," may bolster a finding of unjustified consumer injury.

Although the Commission is most often concerned with economic injury, imposition of "[u]nwarranted health and safety risks" may constitute a substantial injury and lead to a finding of unfairness.

An advertising practice that results in a serious risk of severe physical injury, even to a small number of people, may be deemed unfair. An advertising practice that is "injurious in its net effects" will be considered unfair. Only when the net benefits to society accruing from the practice outweigh the injury and/or the costs associated with remedying it, will the practice be sustained. The Commission has recognized that when an advertising practice is likely to result in serious bodily injury it is "especially likely" that a cost-benefit analysis will support a finding of unfairness.

Finally an advertising practice will not be deemed unfair if a reasonable consumer could easily choose other products. But, if a particular practice "unreasonably creates or takes advantage of an obstacle to the free exercise of consumer decision making," unfairness may be found. Such practices may include withholding or failing to generate information that may be critical to informed comparison and consumer choice. With regard to the avoidability of health and safety risks, general warnings or instructions may not be enough to put consumers on guard. Moreover, an injury may not be reasonably avoidable if the consumer does not appreciate the specific nature and quality of the risks.

The identified ads are clearly unfair under this three-factor test. First, the ads are likely to cause substantial injury. As the studies discussed above demonstrate, guns in the home pose a real risk of serious physical injury to members of the household — a risk that outweighs any protective benefits the guns may afford. Moreover, lured by the manufacturers' claims that owning a gun will make them and their families substantially safer, consumers are likely to be misled into choosing guns over other defensive options, such as home alarm systems, thus causing substantial injury to both themselves and to competitors.

Second, given the magnitude of the potential harm to consumers who may be mislead by these ads, the benefits to consumers of eliminating them far outweigh the costs associated with their elimination.

Third, because the failure of the manufacturers to disclose any information about the risks of owning handguns interferes with free and informed consumer choice, the reasonable consumer cannot avoid the injury imposed by these ads. This is particularly true when, as here, consumers may not understand the nature and quality of the risks posed by handgun ownership. As the Commission has explained, "[w]hether some consequence is 'reasonably avoidable' depends, not just on whether people know the physical steps to take in order to prevent it, but also on whether they understand the necessity of actually taking those steps."

Fourth, this problem is compounded by the portrayal of improper and unsafe storage of the guns in many ads. As noted above, several ads show handguns laying on top of nightstands or desktops while implying that young children are present in the home. This violates a fundamental rule of firearm safety — guns should be stored unloaded in a securely locked container and separately from ammunition, especially when children live in the home. Indeed, the storage practices depicted in these ads violate even the National Rifle Association's advice: "A defensive firearm should be kept out of view and every precaution should be taken to prevent careless or unauthorized use."

Finally, aspects of public policy, including increasing common state laws imposing criminal liability for improper storage of firearms where children are present, bolster these injury arguments.

2. The Identified Ads Are Deceptive. A particular advertisement may be considered deceptive if representations made therein are "material" to the consumer's decision to purchase the product and are likely to mislead the reasonable consumer.

A representation or omission will be considered material if it is "likely to affect a consumer's choice of or conduct regarding a product." Any express or implied claims that were specifically intended by the advertiser and any claims involving the safety, purpose or efficacy of a product are considered presumptively material.

An ad need not mislead all or even most consumers to be found deceptive. Rather, the FTC will examine a representation or omission "in light of expectations and understandings of the typical buyer regarding the claims made."

Moreover, when the representations made about a product attempt to take advantage of a matter of particular public concern, the Commission may examine the claims more closely. For example, in one instance a manufacturer made claims about the ability of its gasoline additive to reduce harmful automobile exhaust emissions, exploiting consumers' concerns about pollution. In reviewing the FTC's decision in the case, the Ninth Circuit explained: "when discussion of a matter of public concern becomes a vehicle for the sale of a product, the representations which bear on the product may take on increased importance in the mind of the public, and it is appropriate for the Commission to consider this factor in determining whether the advertising is misleading or deceptive."

Under these standards the identified ads are deceptive. First, the ads' suggestions that the purchase of a gun will improve the personal safety of the buyer and his or her family is clearly material to a consumer's decision about whether to buy a handgun. Moreover, the presumption of materiality should apply because the manufacturers obviously intended the ads to convey this message and because the message concerns the safety and efficacy of the product.

Second, the ads are likely to mislead a reasonable consumer. Concerns about crime and violence are at an all-time high in this country and these ads prey upon those fears. Given this, it is likely that a reasonable consumer would be susceptible to the ads' message that bringing a handgun into the home increases personal safety. As demonstrated above, this message is at odds with the best available scientific data.

Conclusion

For the foregoing reasons, petitioners request that the Commission order handgun manufacturers to refrain from publishing advertisements that suggest their products will make the owner and his or her family safer when, in fact, bringing a handgun into the home actually decreases their personal safety.

Respectfully submitted,
Dennis A. Henigan
Gail A. Robinson
Center to Prevent Handgun Violence
1225 I Street, N.W.
Washington, D.C. 20005

Attorneys for petitioners Center to Prevent Handgun Violence; American Academy of Pediatrics; American Public Health Association; American Association of Suicidology; American Academy of Child and Adolescent Psychiatry; and National Association of Children's Hospitals and Related Institutions.

February 14, 1996