ADVERTISING 101 – A LEGAL PERSPECTIVE
What is advertising? Wikipedia’s online definition says advertising is a “paid communication through a non-personal medium in which the sponsor is identified and the message is controlled.” Black’s Law Dictionary gives a more technical definition, but all would agree that sales pitches in newspapers and magazines are included in the traditional definition of advertising. The same goes for TV, radio and internet promotions. But what about a business’s message printed on a sales receipt? How about itemized store pricing? Does a price ticket or shelf tag constitute an ad when accompanying the goods offered for sale?
The point is that advertising can take many forms – publicity, public relations, product placements, sponsorships, underwriting and sales promotions, and can be found wherever a visual or audible communication can be placed. Whether presented in a slick Madison Avenue wrapper or posted in a handwritten notice at the store’s main entrance, a message intended to entice and inform the public regarding the sale of goods and services is likely to be general advertising.
Rules on advertising are numerous, but their central theme is to encourage sufficient disclosure to protect the public from the unscrupulous huckster. Crafting an ad with mouse-type legalese – that very tiny print found in many TV and print ads – might seem to be overkill, but it is often important and very relevant. Failure to include the little details can often land your business in a world of trouble.
Once a price tag includes more than just the cost of the goods – i.e., facts are added (“free”, “instant rebate”, “today only”) – you may be required to make additional disclosures. Although it is difficult to provide general guidance, you can count on the public to hold your feet to the fire if a fact they consider to be important has been omitted and they feel deceived. When consumers are involved, perception becomes reality and if they believe a certain detail is important, the ad better contain it in order to protect the buyer – often from himself.
Consider where your ad will appear, in what medium and the intended target. With today’s rapid expansion of technology and choices of advertising media, it is not uncommon for an ad to reach an unintended audience. For example, an internet ad intended for buyers in Salem, VA can be read in Salem, OR, copied innumerable times without permission, and sent around the world in an instant. It’s impractical to know and comply with every rule in every jurisdiction, so the best rule to follow is to include in your ads those terms necessary for a reasonable person to complete the transaction when, where and how you intended in a typical commercial manner.
Because many advertising guidelines are derived from case law rather than actual statute, there are few black and white rules to tell us specifically what to include in our ads. The general and best rule – don’t deceive the public – is subjective, and regulators will bring their own preconceived ideas of what should (and should not) be included in a properly crafted advertisement. You can tempt, but don’t mislead.
Virginia law prohibits a merchant from advertising goods with the intent not to sell them as advertised – both as to condition and price – and a violator can face civil and criminal penalties. Nothing infuriates the public more than the bait and switch — where a merchant advertises an alluring product to entice the public, doesn’t have adequate supply to meet demand, and tries to sell the buyer an inferior and more expensive substitute. Regulators will act quickly if the merchant intentionally created an excessive demand for its supply, and the substitute offered is inferior and more costly. Simply stating “While supplies last” is not sufficient to protect a merchant that should have anticipated large demand and did not prepare for it. A merchant should disclose if he only has a few of the advertised products per store so that the customer knows his chances of getting the advertised products are not promising. To keep sufficient supplies available, the merchant could disclose limitations on purchases per customer, and other important conditions of sale should be included in the ad to avoid additional deceptiveness claims (e.g., if additional delivery charges apply).
Your local Better Business Bureau is a great source for guidance on how to properly conduct one’s business and it has lots of experience with deceitful marketing practices. Many of the do’s and don’ts of advertising can be found on their website at www.bbb.org.
The primary rule to follow is not to deceive, and by using common sense and putting yourself in your customers’ shoes, you can usually determine if more disclosure should be included in your ads. Don’t be too reluctant to state the obvious or to include the fine print details, even when it may increase the size of the ad – it may help you avoid complaints and lawsuits. Advertising that fully informs will be more beneficial to you in the long run.