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While we all agree that the “free enterprise” system should stay free of government over-regulation; and while we all say that you can’t legislate morality, and we all understand “caveat emptor,” and we all understand that businesses have the same “freedom of speech” as is granted to individuals prima facie, and there is a fine line between deceit and “sharp practice”, there is some room for court action to protect consumers from non-disclosure of risks and dangers associated with using products. Where courts could add to the existing consumer protection statutes is in the severity of violations penalties. The company can be sued—fine, but that potential cost is built into the profit calculations. What is needed is a real deterrent against conscious bad practice—public disgrace, CEOs prohibited from keeping their offices and bonuses, etc.—some consequence that threatens the actual business’ existence, even a stockholders’ penalty. What we need from the courts is the power that the individual consumer does not have—a collective punishment for (conscious, deliberate) deceit. Also, the consumer needs to be educated to recognize practices in advertising that use false logic—post hoc, equivocation, diluting qualifiers (the “best in its class,” of all brands tested” etc.), and all the rest. Courts can only deal with laws, but consumer advocate groups could launch a campaign for “non-illogical” advertising, a campaign that could include “outing” serious offenders and their advertised products.
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