As we begin a new year, here are some top tips for advertisers to avoid some of problems we saw in 2018:
(1) First and foremost, of course, always substantiate your claims (unless they're puffery), especially if they're health claims and especially if they're comparative.
(2) If you think a statement is puffery, show it to your mom, your best friend or your significant other and ask them what they think is communicated by the ad. THEN decide if it's puffery and you don't need substantiate.
(3) Can you make that disclosure/qualifier part of the claim itself? If not, make sure it's clear and conspicuous and proximate to the claim it qualifies.
(4) Is it REALLY free? Or are there some requirements, like a purchase? If so, make sure they're, oh you know! (See 3 above)
(5) Signing people up for an auto-renew plan when they order your product or service? Make sure they know that! Don't have any surprises for your purchasers — unless it's truly a gift.
(6) Make sure your label and product name match your claims and pay attention to what they communicate, whether through words or pictures. And if you're calling your product natural or other regulated or consumer-meaningful term, be very careful.
(7) Running a limited supply or limited time offer? Make sure you have enough to meet reasonable demand. Conducting a sweepstakes instead? Make sure it's properly structured to ensure it's not an illegal lottery, draft full Official Rules and include the appropriate disclosures in your ads.
(8) Want to communicate with your customers via text messages? Don't even think about it unless you have their permission, which you obtain in the right way and with all the right disclosures.
(9) Running a commercial co-venture? Work with a reputable charity, make the appropriate disclosures and keep good records of the purchases and your donation amounts.
(10) Working with influencers or affiliates? Make sure they know to disclose their connection with you in their posts. And keep an eye on them to make sure they're doing it.
And bonus resolution: make sure you sign up for the Frankfurt Kurnit ad law blog for all the latest and greatest in must-know developments from the FTC, state AGs, NAD, class action bar, and more. You can check out all our posts and subscribe here.
Happy new year!
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