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Federal Trade Commission regulates all forms of advertising in the United
States. They publish rules on mail order, the Internet, telephone sales, 900
numbers, gaming, deception in advertising, product labeling, consumer credit,
and much more.
This page offers a brief overview of some of the advertising laws regulating your print advertising. Please note that Professional Advertising is not offering legal advice.
For detailed information about advertising law, please contact the Federal Trade Commission directly, or check with your state's Attorney General’s Office about consumer protection advertising laws. Also note that state and local laws can be stricter than federal laws, so double check.
you have questions or doubts about any of your advertising, check with a lawyer.
At Professional Advertising, we like to take the
conservative approach on these matters.
your organization from outside threats is critical to your bottom line. Knowing
how to protect your company while increasing the effectiveness of your
advertising is what Professional
Advertising is all about.
Truth in Advertising
to the Federal Trade Commission (FTC), “advertising must be
truthful and non-deceptive… advertisers must have evidence to back up their
claims… and advertisements cannot be unfair.”
According to advertising law, an
advertisement is considered deceptive if it contains a statement or omits
information that “is likely to mislead consumers acting reasonably under the
circumstances; and is, ‘material’ -
that is, important to a consumer's decision to buy or use the product.“
the law states that your advertising cannot be misleading. You have to tell the
truth, or clearly label your ads so that no reasonable person could mistake your
intent. Advertisers [and their advertising agencies] need to have a
reasonable basis for advertising claims before they are published.
Unfair Advertising and Business Practices
According to the FTC, an advertisement
is unfair if “it causes or is likely to cause substantial consumer injury
which a consumer could not reasonably avoid; and it
is not outweighed by the benefit to consumers.”
In advertising law, “substantial consumer injury” and “material” are related things. In part, advertising law protects consumers from financial loss due to deceptive practices.
law does make an exception when consumer benefits outweigh consumer injury, but
you probably don’t want to pay the expenses of explaining that in court.
Bait and Switch Tactics
It’s illegal to advertise a product when you have no intention of selling that product at the advertised price. Bait and switch tactics are illegal, period. If you advertise a product, the law says that you have to intend to sell it as advertised.
Advertising Law: Catalog Sales
a catalog retailer, you are not obligated to substantiate the claims made by
suppliers about their products. However, caution and common sense should dictate
your ad copy. Stick to the claims made by the supplier, and do not expand or
improve on them. Do not print anything that is not reasonable.
Advertising to Children
FTC pays particular attention to advertisements aimed at children. These ads are
evaluated from a child’s point of view, not an adult’s. If you advertise to
children, be very careful about following all of the guidelines. No company
wants the publicity that comes from accusations about possibly misleading
the comparison you make is true, then it is legal to print it. If you are better
than your competitors, the law says that you can tell the whole world about it.
Contests and Sweepstakes
are many different advertising laws governing contests and sweepstakes. Check
with your state's Attorney General’s Office and with the FTC. And you might
want to check with your lawyer.
All ads offering consumer credit must include “clear and conspicuous” disclosure terms and conditions of receiving the credit. Check with your advertising agency, your lawyer, or the FTC if you are planning on offering credit in your ads.
express claim is a direct claim made in an advertisement like “our product
prevents sore throats.” The claim must be true and substantiated.
An implied claim is an indirect claim made in an advertisement. For example, “our product kills germs that cause sore throats” is an implied claim. The implication is that the product prevents sore throats.
FTC judges claims on what a reasonable consumer would assume given the entirety
of the advertisement and all of the claims made. Advertising law says that the
implied claim must be true and substantiated.
Disclosure and Disclaimer Statements
These statements are required if an advertisement's express or implied claims could be misleading.
A disclosure statement gives qualifying information so that a claim is not misunderstood. The disclaimer must be “clear and conspicuous” so that consumers can notice and understand it.
disclaimer needs proximity and prominence in relationship to the claim, with
little other distraction. And the disclaimer cannot correct a false claim –
that would be deceptive advertising.
Endorsements and Testimonials
Advertising law says that endorsements and testimonials must show the honest opinion or experience of the endorser. Claims must be truthful and substantiated.
If a celebrity claims to use a product, that claim must be true. Consumer endorsements must reflect the typical consumers experience with the product. Stating, “your results may vary” doesn’t help if the typical consumer cannot expect similar results.
endorsements must be supportable by scientific methods, not by the opinion of
one expert. And if there is a ”material” or financial connection between
your company and the endorser, advertising law says that you need to disclose
can give away anything you want, unless there is a catch. If your “free”
item is tied to a second purchase, then the second item’s price has to be the
regular price. If there are any conditions on the “free” item, advertising
law says you must disclose all of the information in a “clear
and conspicuous” manner.
law says you must prominently feature the before-rebate price in your ad, and
the amount of the rebate. Any additional terms of purchase must be disclosed,
and you need to indicate how long it takes to receive the rebate.
Guarantees and Warrantees
you want to mention your guarantee in your ad, you must tell consumers how to
get all of the details on that guarantee. Any conditions or limits must also be
disclosed in the ad. A complete copy of the guarantee must be made available to
consumers before any sale. This also covers phone, catalog, mail, and online
Advertising on the Internet
of the other truth in advertising laws apply to the Internet. The FTC is
particularly concerned with disclosure statements and false advertising claims.
All ads must be truthful and substantiated. Contact the FTC for more
Advertising Law: Mail Order Advertising
of the other truth in advertising laws also apply to mail order advertising. Any
orders received by phone, fax, online, or by mail should ship within 30 days, or
within the timeframe stated in the ad.
claims must be true and substantiated, and all of other advertising laws apply.
Advertising Law: New Products
long as it really is new, you are probably okay for six months. Check with the
FTC for specific claims about new products by product category. There are limits
on what you can refer to as new.
Advertising Law: Price
All of the truth in advertising laws apply to advertising price. If you are making a comparison, it needs to be truthful. If you say that the product is being sold for "$xx" elsewhere, then in fact, other representative retailers must be selling at that price.
few small retailers selling at the higher price elsewhere are not representative
of the market. Media publishers may require you to substantiate your claims
before they will print your ad. Contact the FTC for more.
Advertising Law: Sale
Your sale price must be a reduction from the actual, bona fide former asking price that was offered on a regular basis to the public for a reasonably substantial time period.
you didn’t sell a substantial amount of product at the higher price, you
can’t say “formerly sold at "$xx", because it is not really true.
Inflating a price only to reduce it to its regular selling price and claim that
it is on sale is not legal.
Advertising Law: Mis-marked Price
a product is marked or advertised at a certain price, your state laws may
require you to sell it at that price. Check with your state's Attorney
Advertising Law: Rain checks
food retailers must offer rain checks or comparable substitute products.
However, it is good business practice for all retailers to offer rain checks,
because the public expects it. Protect yourself by stating, “quantities are
limited,” or “not available in all stores.”
Going Out of Business Sale
can make this claim only if it is true. The FTC watches for perpetual going out
of business sales.
Standards for Proving Claims
you make a claim about your product or service, the FTC expects that you can
substantiate that claim, and that you have the ability to fulfill your promises.
The law states that substantiation must be based on fact and objective
evaluation, not opinion.
Deception comes from a representation, practice, or omission that may mislead the public. The claim can be written or oral. And the entire sales transaction is considered – not just a single statement.
the representation, practice, or omission is deceptive is based on what a
reasonable consumer would infer from the information.
And the deceptive practice must have a negative material or financial
cost to the consumer.
creation of art [advertisements, illustrations, photos, logos, etc.] carries
with it automatic copyright protection. The creator of the art owns it, until 50
years after death, unless specific contractual terms transfer that ownership.
addition, each artist has copyright protection for his or her component of a
given piece of work – the photographer, the illustrator, the graphic designer,
etc. Each artist must sign a release. With artwork, it is important to
understand the terms.
- a statement from the artist that all of the work is original or is
being used with permission for the intended purpose.
Usage Rights - describe how, when, where, and how long artwork will be used.
Responsibilities - Normally the
client is responsible for copywriting and proofreading. All original artwork,
digital media, files, and mechanicals are the property of the artist.
Ask For Help
As always, Professional
Advertising is here to help you. We strongly recommend that you run your
work past a marketing professional for assistance or a second opinion. And our
professional advertising design services are also available to help you succeed.
Remember, you are responsible for the content of all of your published materials. If you have any doubt about what to print, ask your lawyer, and check with the FTC and your state's Attorney General’s Office.
If you have legal questions, please contact an attorney. It’s a cheap investment for something that is as important as your entire advertising program.