Checklist for Advertising

February 24, 2014

By: John A. Leonard and Ryan M. Tharp

The mantra for advertising is simple: do not mislead or deceive the customer.

  • Are there any misleading or deceptive statements or images?
    • Advertisements cannot be misleading or deceptive. A court held a commercial showing a man squeezing orange juice into a carton was misleading because the actual process involved pasteurization and sometimes freezing the juice.
  • Is the advertisement, taken as a whole, misleading or deceptive?
    • In addition to each statement individually, the advertisement as a whole cannot be misleading or deceptive. Sometimes some statements, which are fine individually, can become deceptive in the context of the whole advertisement.
  • Are you sure that the puffery is puffery and not a statement of fact?
    • Puffery is exaggeration, blustering, and boasting upon which no reasonable customer would be justified in relying. Puffery is subjective, based on opinion, and not verifiable. Puffery can be a general claim of superiority over comparable products that is so vague that it is nothing more than mere opinion. Puffery is allowed.
    • Courts have found the following to be puffery: “Best Beer in America;” “the Most Advanced Home Gaming System in the Universe;” and “anything closer would be too close for comfort.”
  • Are there any statements that are verifiable (i.e., statements of fact)?
    • A verifiable statement is a statement whose truth can be determined. If a statement is verifiable, it is a statement of fact.
    • Courts have found the following statements to be facts rather than puffery: “longer engine life and better engine protection;” “50% less mowing;” and “stops pain immediately.”
  • Are there any false statements of fact?
    • False statements of fact are automatically misleading and deceptive.
  • Can you articulate a reasonable basis for believing that any statements of fact are true?
    • If you cannot articulate a reasonable basis for believing a statement of fact is true, the statement may be misleading.
  • Are there claims of testing, scientific results, or levels of support (i.e., 9 out of 10 dentists agree…)? If yes, are they misleading or deceptive?
    • The testing or scientific experiments must have occurred and the results must support the statement. Evidence of levels of support, such as survey results, must exist.
    • A statement such as “Rated No. 1” or “Proved the Best” should have a disclosure of the essential facts underlying the statement.
  • Are there any product comparisons? If yes, are they misleading or deceptive?
    • Objective comparisons (i.e., “X is [bigger, has more sales, etc.] than Y” or “X is the [oldest, most popular, etc.]”) require a reasonable basis for believing the comparison to be true.
    • Subjective comparisons (i.e., “X is [better, cooler, more awesome, etc.] than Y”) may be puffery and may not require a reasonable basis.
  • Are there any endorsements? If yes, are they misleading or deceptive?
    • An endorsement is any advertisement that a customer would believe reflects the beliefs, experience, or opinion of someone other than the advertiser.
    • If the advertisement states that a certain person uses the product, that person must actually use the product.
    • If the advertisement has a customer endorsement and the customer experienced extraordinary results, the advertisement must state that the results to do not reflect the results of an average customer.
  • Are there any promotions (i.e., “free,” “buy one, get one free,” “two for the price of one,” etc.)? If yes, are they misleading or deceptive?
    • “Free” must be temporary and any conditions must be stated (i.e., buy one, get one free). You cannot increase the price or reduce the qualify for promotions.

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

Copyright © 2014 Fairfield and Woods, P.C., ALL RIGHTS RESERVED.

Comments or inquiries may be directed to:

John A. Leonard and Ryan M. Tharp