advertising
TRANSCRIPT
WHERE LAW AND BUSINESS MEET®
Are you an Internet advertiser who uses interactive advertising, e-mail advertising or viral marketing? Or do you use traditional media – print or broadcast – to let consumers know about your product or service? Either way, there are many laws that may affect your advertising practices.
Marketing and advertising is essential to the success of your business. However, all businesses have a legal responsibility to ensure that any advertising claims are truthful, not deceptive and that your marketing activities don’t break the law.
The Federal Trade Commission (FTC) oversees and regulates advertising and marketing law in the United States. These laws can potentially impact many areas of your business, including how you label your products, how you conduct email and telemarketing campaigns, any health and environmental claims you may make, as well as how you advertise to children.
At Fredrikson & Byron we can help you fine-tune your advertisements, sweepstakes, coupons and other promotions to bring them into compliance with the law to avoid costly pitfalls.
Our clients range from advertising agencies and promotional companies, in-house legal counsel and businesses marketing their own products and services.
LawsWhen consumers see or hear an advertisement, whether it is on the Internet, radio or television, or anywhere else, federal law says that ad must be truthful, not misleading, and, when appropriate, backed by scientific evidence. For some specialized products or services, additional rules may apply.
1. Section 5 of the Federal Trade Commission ActThe Federal Trade Commission Act provides that “unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful”. The FTC relies on the FTC Act and on other more specific consumer protection laws in carrying out its mission.
2. Telemarketing and Consumer Fraud and Abuse Prevention Act and Do-Not-Call Registry Act of 2003The Telemarketing and Consumer Fraud and Abuse Prevention Act requires the FTC to promulgate regulations defining and prohibiting deceptive telemarketing acts or practices.
3. CAN-SPAM ActThe CAN-SPAM Act establishes requirements for those who send unsolicited commercial email.
4. Fair Packaging and Labeling ActThe Fair Packaging and Labeling Act directs the FTC to issue regulations requiring that most consumer commodities be labeled to disclose net contents, identity of commodity, and name and place of business of the product’s manufacturer, packer or distributor.
Specific Areas of CautionChildrenIf you advertise directly to children or market child-related products to their parents, it is important to comply with truth-in-advertising standards and the Children’s Online Privacy Protection Act.
EndorsementsDo you use endorsements in your marketing? If so, your advertisements need to meet the standards of the FTC Act and other FTC guidelines. Endorsements must reflect the honest opinions, findings, beliefs or experience of the endorser.
Environmental Marketing Companies are offering consumers an ever-growing assortment of “green” options. That being said, regardless of whether your environmental claims are about the product or the packaging, you will need competent and reliable scientific evidence to support what you say.
Health ClaimsCompanies must support their advertising claims with solid proof. This is especially true for businesses that market food, over-the-counter drugs, dietary supplements, contact lenses and other health-related products.
Made in USADo you promote your products as “Made in the USA”? Under the law, some products must disclose U.S. content. For others, manufacturers and marketers who choose to make claims about the amount of U.S. content must comply with the FTC’s Made in USA policy.
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AdvertisingLaws, areas of caution, avoiding costly pitfalls.
Online Advertising and MarketingThe Internet connects marketers to customers across the country and around the world. If you advertise online, remember the rules and guidelines that protect consumers and also help businesses by maintaining the credibility of the Internet as a marketing medium. In addition, truth-in-advertising standards apply if you sell computers, software, apps, or other products or services.
TelemarketingThe FTC’s Telemarketing Sales Rule helps protect consumers from fraudulent telemarketing calls and gives them certain protections under the National Do Not Call Registry. Companies also need to be familiar with rules banning most forms of robocalling.
Coupons and DisclaimersA consistent, well-rounded coupon policy is important to keep customers happy and to preserve public trust in your business. In addition, legal liability can often be avoided on your coupons by having a good disclaimer.
Loyalty ProgramsLoyalty programs are subject to a number of state laws and simply copying your airline’s frequent flyer program will not suffice (plus, the FAA preempts state laws, so frequent flyer programs are not a good model). You also need to consider practical issues, like redemption, privacy issues, gift certificate laws, unclaimed property laws, and general advertising and sweepstakes laws.
SweepstakesIf handled correctly, sweepstakes can be effective tools to generate consumer interest, revenue and brand awareness. However, if handled improperly (for example, if structured as an illegal lottery), they can have expensive and embarrassing repercussions. Every promotion should be governed by official rules that state all material terms of the promotion, including who is eligible, how to enter, what the prizes are and how much each one is worth, how winners are selected, how long the game will last, and what restrictions may apply.
Competitive AdvertisingCompetitive advertising compares alternative brands on price or other measurable attributes, and identifies the alternative brand by name, illustration or other distinctive information. Advertisements that attack, discredit or otherwise criticize another product are permissible if they are truthful and not expressly or impliedly deceptive.
Gift CardsRetail gift cards have become an increasingly popular way for consumers to buy things. Federal and state laws are designed to protect consumers and restrict gift card fees and expiration dates.
Advertisement and Copy ClearanceFredrikson & Byron attorneys strive to help ensure our clients’ advertise accurately and truthfully represent the goods and services marketed and reasonably comply with state and federal laws, broadcast advertising standards, and the requirements of self-regulatory bodies. Rather than just saying “no,” we help clients understand potential concerns and pitfalls and work together to find an appropriate alternative.
Services ProvidedFredrikson & Byron works with brand owners; advertising, direct marketing and sales promotion agencies; designers; illustrators; photographers and other businesses of all sizes throughout the country. The services we offer include:
• Marketing contracts• Advertising, marketing & promotions• Social media law• Sweepstakes & Contests Law• Business formation and startup• Trademark clearance, prosecution and maintenance• Trademark protection, enforcement and licensing• Copyright registration, protection and licensing• Advertising copy review• Sweepstakes review, rule drafting and registrations• Competitive advertising disputes/litigation• Trade secret protection• Non-compete agreements• NDA agreements
For More Information, Contact 2016 INTA Attendees:
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main 612.492.7000 fax 612.492.7077
fredlaw.com
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