Under the common law, civil actions could be brought for deception involving false statements between the buyer and seller, however, successful suit required a showing of injury. The victim would recover the difference in value between the product as sold and as stated. Thus, recovery was limited and the individual would not have strong incentives to bring suit.
The common law treated difficult to detect frauds as public wrongs, in recognition that such frauds presented a collective action problem. For instance, falsifying a weight or scale in order to cheat the buyer would be a common law fraud, remediable by criminal punishment, because no one individual is likely to detect the fraud, but many are likely to be affected by it.
Public prosecutions could be brought where private transactions deceived the public at large. While this principle seems directly applicable to advertising, a different common law requirement—intent to deceive—complicated matters. As buyers were increasingly divorced from dealing directly with creators of products, it became easier to introduce deception into a transaction, and more difficult to prove a specific intent to defraud. Advertising itself creates a problem because it is possible to create misrepresentations without an in-person interaction. Modern deception problems involve implicit misrepresentations, and these may have been accidental or intentional. Sometimes advertisers subjectively believe false claims about their own products.