Remember the Herbal Essences commercials from the 90s? They went over my head when they came out in 1994, but they definitely, um, left an impression on five-year-old me—I remember wanting my parents to buy me that shampoo every time we re-upped on bathroom stuff. Whatever was happening to that lady seemed awesome. By the time I had my own discretionary income, however, I was also old enough to know the scalp was not an erogenous zone and that marketers are professional liars. I developed into what I would consider a reasonable consumer.
But who's considered "reasonable" under the law? It's a question that may have to be answered soon, because one New Yorker apparently never wised up to the deceptive tactics of marketers—or to the basic laws of science and anatomy. Last week, Queens resident Meng Wang filed a class action lawsuit against Gildan Outerwear, which used salacious ads similar to Herbal Essences's famous "Yes! Yes! Yes!" campaign. Her lawyer is claiming that Kushyfoot Shaping Thighs were supposed to leave her "satisfied," but were ultimately "just socks."
Sex has been a part of advertising since the invention of ads, and Thomas Reichert, the head of University of Georgia's advertising program, has been studying it in all its incarnations. In his 2003 paper "How to Get 'Kissably Close': Examining How Advertisers Appeal to Consumers' Sexual Needs and Desires," he divides sexualized ads into three categories: Some promise to make the consumer more attractive, some suggest products will directly lead to sex, and others imply people using a certain product will gain a certain amount of "sex esteem."
"Fulfillment, whether in the guise of sex esteem or attractiveness or behavior," the paper concludes, "serves as a commonplace message that advertisers use to brand their products as part of a sexual lifestyle." He suggests that the paper be used as a jumping-off point for researchers to analyze the different sexual promises advertisers make and expand his three rudimentary categories.
The 90s saw the birth of a trope that wasn't mentioned in Reichert's paper—ads began to show the products themselves straight-up giving women orgasms. In 1992, Bernadette Peters became visibly aroused when eating Breyer's ice cream. Then Herbal Essences stepped it up, though Proctor and Gamble ultimately pulled the campaign due to pressure from the American Family Association. Shortly thereafter, though, a Kim Cattrall ad pretty explicitly compared riding in a Nissan to having really good sex. In 2007, two women talking about yogurt called it "long massage good."
The question this new lawsuit might sort out is: Are these kinds of ads technically deceptive, and does the law protect people who watch an actress fake a knee-weakening orgasm and believe that what's happening is real?
"As she makes her way through the streets, she moans and utters highly sexually charged phrases to herself including 'That's the spot' and 'so good' as the song with the lyrics 'I feel super satisfied, super satisfied' plays in the background to further the sexual angle of the advertisement," is how the complaint describes the Gildan Outerwear ad.
"Her assertive stride and relaxed air are literally show-stopping, causing male and female passersby alike to stop in their tracks with their mouths agape."
What's more, on the packaging there's a diagram that purportedly shows how the tights use reflexology to "massage" the wearer's body and leave them feeling "pampered." Kushyfoot "did not offer any medical benefits or additional tension relief or comfort or feel "ahhh-mazing," according to the complaint.
"You don't feel any massaging thing," says attorney C.K. Lee, who is representing Wang. "To charge a pricing premium is really a fraud to the consumer. And they exacerbate it with that video." Gildan Outerwear didn't return a request for comment about whether Kushyfoot gives orgasms or whether "reflexology" is a legitimate science.
That second part might give Lee and his client a case—it's not clear that reflexology offers real, scientifically proven benefits. And in the past, companies have had to pay for making grandiose claims about their clothes. Last year Vibram, the outfit behind those running shoes that look like gloves, settled a class action lawsuit for $3.75 million after customers complained that ads saying the shoes would reduce foot injuries were based on quackery; Reebok and Sketchers have been busted for falsely claiming that their shoes could tone your ass and thighs while you walked.
The Federal Trade Commission has never pursued a company for promising orgasms, a spokesperson there told me, although the idea of calling such an ad deceptive isn't entirely implausible. If enough complaints were raised, the agency would screen the commercial for people and take a survey. Using that data, officials would determine how a reasonable consumer took the ad.
But just because it's technically possible doesn't mean its likely. Reichert, who's spent the better part of his life studying how people interpret ads, thinks the suit is ridiculous.
"Can you imagine someone suing because jeans/hairspray/cosmetics/lotion etc. didn't result in a date or a one-night stand?" he says. "I would guess 95 people out of 100 would not expect the implied claim to be actual promise."
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