The DNR Tattoo

Last week, the Associated Press reported the fascinating story of an unconscious man admitted in acute distress to Miami’s Jackson Memorial Hospital. The words “Do Not Resuscitate” were tattooed across his upper chest, where one would see them before engaging in chest compressions. He carried no identification, so the medical staff could not reach his next of kin. A decision had to be made immediately, however: do we attempt to revive him?

© Getty Images

If doctors took the tattoo at face value, the patient would die. If they rejected the literal words, reading ambiguity into it (perhaps it was merely the result of youthful indiscretion), he might live. The stakes could not have been higher. “We’ve always joked about this, but holy crap, this man actually did it,” said the attending ER physician. “You look at it, laugh a little, and then go: Oh no, I actually have to deal with this.” Fortunately, Jackson Memorial has an ethics team on call for these kinds of situations, and after swift consideration, they recommended that the doctors honor the man’s tattooed request — they allowed the man to die.

Apparently, this is not the first DNR tattoo story. An author in the Journal of Internal Medicine writes of a patient admitted to the hospital for serious surgery, who had the letters “D.N.R.” tattooed on his sternum. When interviewed as part of preoperative procedure, he indicated that he in fact did want to be resuscitated if he went into arrest during surgery, contrary to what was written on his chest. He explained that he acquired the DNR tattoo after losing a drunken poker bet. The author dryly remarks, “It was suggested that he consider tattoo removal to circumvent future confusion about his code status.” The patient declined, however, saying that “he did not think anyone would take his tattoo seriously…”

Can Advertisers Be Taken at Their Word?

The tattoo story has me thinking about its application to advertising. In our line of work, we are frequently confronted with ad copy that expressly says one thing, but arguably implies something else. Indeed, most comparative advertising disputes arise from this kind of situation. The advertiser has carefully crafted a claim, believing it to be truthful and well substantiated. A challenger argues that the literal words may be true, but that the claim also implies something different, and that the different implication is false. Very few sophisticated advertisers are careless or unscrupulous enough to communicate literally false claims. Arguing about implied claims is where the action is.


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You may have seen the commercial on late night television. A glowing image of a human brain appears (along with a disclosure stating “dramatization”), with flashing lights pulsing through a crisscrossed mesh, depicting nerves. The voiceover intones, “Your brain is an amazing thing. But as you get older, it begins to change, causing a lack of sharpness or even trouble with recall.” So far, so good. Who, of a certain age, hasn’t experienced these symptoms?

The voiceover continues: “Thankfully, the breakthrough in Prevagen helps your brain and actually improves memory.” The flashing lights grow stronger and zoom more quickly across the neural net. “The secret is an ingredient originally discovered in jellyfish. In clinical trials, Prevagen has been shown to improve short term memory. Prevagen, the name to remember.”

A screen shot of the key frame, showing a graph of what appears to be recall improvement over time appears, along with a disclosure that states that “in a computer assessed, double-blinded, placebo controlled study, Prevagen improved recall tasks in subjects.”

© Prevagen


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© iStock

Earlier this month, the Northern District of California dismissed FTC’s unfairness claims against D-Link, a manufacturer of routers and IP cameras, while allowing most of FTC’s claims rooted in deception to survive, suggesting that traditional false advertising actions may be FTC’s most effective means of addressing suspect data security

Baker’s dozen = 13 (not 12)

Easy.

Foot = 12 inches (the length of the average man’s foot)

Of course. I learned this in the second grade.

2 by 4 = 1.5 inches by 3.5 inches  

What?

4 by 4 = 3 ½ inches by 3 ½ inches

No way.

5/4 inches by 4 inches = 1 1/8 inches by 3 ½ inches

Mind. Blown… unless you’re a carpenter or in the construction industry.


In the United States, softwood lumber is governed by the American Softwood Lumber Standard which was developed by the American Lumber Standard Committee, in accordance with the Procedures for the Development of Voluntary Product Standards of the U.S. Department of Commerce. That’s a mouth full. However, the lumber standard is a government-approved codification of longstanding industry practices. And, while dimensional lumber is cut to a specific length, width, and depth, there is a difference between the nominal size (what the lumber is referred to) and its actual size.


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A California state court recently issued a preliminary ruling proposing to assess a statutory penalty against online discount retailer Overstock.com in the amount of $6.8 million for engaging in allegedly false and misleading discount advertising.1 Overstock.com was alleged to have advertised discounted prices that were pegged to the company’s own uncorroborated estimate of undiscounted retail value, rather than on actual data. The case highlights the risk that both online and brick-and-mortar retailers face if they advertise “discounts” from “regular” prices that have never actually been offered in commerce, in violation of the Federal Trade Commission guidelines against deceptive advertising (“FTC Guides”). The case also signals a major new threat to retailers engaging in these kinds of marketing strategies, which are common in the industry.

The Overstock.com case began in 2010, when a group of California district attorneys filed a private action under California’s False Advertising Law, Unfair Competition Law, and Consumer Legal Remedies Act. Their complaint alleged that Overstock.com “routinely and systematically made untrue and misleading comparative advertising claims” by comparing its retail prices to “advertised reference price(s)” (ARPs) that were not the prevailing market prices for its products. The district attorneys claimed that Overstock.com instead used misleading internal formulas designed to “inflate the comparative prices and artificially increase the discounts it claimed to be offering consumers.” The complaint also alleged that because Overstock.com was no longer merely a reseller of distressed merchandise, but was now actively engaged in original design, production and sale of a wide variety of products, it could not possibly advertise a “discount” for such products that were never sold at an undiscounted price.


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