Yes, this is very easy. “They can defend the advertisement” is not the standard I was proposing. That is the existing standard which, as you point out, is functionally impossible to fail. As long as you can create a tortured interpretation in the worst of all possible worlds that even a genie would be proud of, you get away with clearly intentionally deceptive statements.
As we know, false commercial speech is already, rightfully, not protected by freedom of speech. However, the standards for such have been so thoroughly blinded for the benefit of liars to the detriment of society as to fail to detect attempts to deceive so obvious that even children can tell let alone more subtle attempts.
Instead, the standard should be strengthened. Commercial speech should need to affirmatively “prove” it is non-deceptive and safe for consumption in reasonable proportion to the resources allocated to its production. Commercial speech should become more truthful and accurate and immune to misinterpretation the more resources that are allocated to it unlike the status quo where is becomes more deceptive.
This is a standard that is trivial to achieve for anybody with interest in the truth. Dry, informational statements that err on the side of caution are obviously acceptable. If you are producing a advertisement at substantial cost then instead of using your focus group budget on making sure the targeted consumer is thoroughly deceived, you will need to use it to make sure they only believe things you would also affirm in a court of law.
I colloquially call this the “Technically, your honor…” standard. If you say that you should probably lose.
This is not to say that the standard is that nobody in the entire world comes to a false belief, just that the overwhelming majority do not.
Reasonable defenses would be:
1. The false belief is not beneficial to the marketer.
2. The false belief is so small as to be immaterial.
3. The person with the false belief is not reasonably in the target demographic. (Nuanced statements might be misinterpreted if not in target demographic)
4. The interpretation leading to the false belief is unreasonable. (People can just be unreasonable and stupid)
5. The false belief is unexpected and could not have been reasonably detected given the resources allocated. (Minor mistakes and blindspots are acceptable, you can not account for everything, but you must account for more as more effort is used).