Josh E. Saltz
Below, we review six steps you can share with your marketing teams to ensure you stay in the clear of any false advertising lawsuits.
Whether your business sells direct to consumers or mostly navigates the business-to-business sales world, protecting your company against misleading or false advertising is crucial. It’s estimated that roughly 70 percent of the complaints received by the Federal Trade Commission are related to false or misleading advertising, and many of these claims will typically result in false advertising lawsuits. Safeguarding your company against a false advertising suit is crucial if you wish to remain profitable over the long-term.
If the product or service you’re offering has significant conditions, warnings, or information that the user would otherwise need to know to decide whether they wish to use it or not, then you must be sure to include this information in your advertising. This information should always be listed and clearly linked to the campaign’s central message.
The only price advertised in your messaging should be that which directly aligns with the product being shown. Include any non-optional charges, such as VAT, taxes, and booking or delivery charges on your pricing as well - or at the least, a reminder that the price is not inclusive of these costs.
Advertising is about presenting a product in the best possible light, but don’t overestimate what the product’s actual use and outcome are designed to achieve. Being misleading or making specific promises about a product’s efficacy, or including obvious exaggerations or statements that are difficult to measure and prove, is one of the fastest ways to wind up a target of a false advertising lawsuit.
If you are going to make any claims in your advertising, you should be sure that the ad specifically includes text that qualifies or demonstrates whatever it is you’re alleging. Ensure your qualifying text doesn’t further obscure or mislead the product’s stated intent - for example, don’t advertise a sale that isn’t available to everyone or includes specific exclusions.
It’s one thing to claim a product works in a certain way, and it’s quite another to have the evidence or data to back it up. Before you step out and make big announcements regarding your product or service’s efficacy, you should hold adequate evidence to support any and all objective claims about how your product functions. The amount of evidence you will need will depend mainly on the type of claim being made - for example, health and beauty companies will want ample data supporting any claims they make about their products.
Remember that even your product’s name can be up for debate regarding false advertising claims. You’ll want to make sure that anything related to what you’re selling doesn’t leave itself open to interpretation by an overzealous consumer or business looking to make a dent in your bottom line.
Josh E. Saltz is an associate attorney at Peretz Chesal & Herrmann, P.L., who focuses his practice in trademark, copyright, licensing, social media and Internet law.
