Client Advertising Through a Lawyer’s Eyes

Advertising is the business of preparing a public notice in order to give public attention about an organization, product, service, or idea (hereinafter “product”) from a known source in order to sell the product or convince the intended audience of the value of the product.

Everyone agrees that traditional forms of advertising includes sales pitches in newspapers, magazines, TV, radio and internet promotions. Advertising can also include messages sales receipts.

Obviously, advertising can take many forms – publicity, public relations, product placements, sponsorships, underwriting, and sales promotions. Advertising be found wherever a person’s senses can perceive it. Whether the advertising is presented in a sophisticated video on a national TV network, a jingle heard on the radio, or on a sign in a store window, it will be governed by the law.

The central rule on advertising is to encourage sufficient disclosure to protect the public from the unscrupulous snake-oil salesman. The ad that has the very small font found at the bottom of many print ads or the voice that can talk at supersonic speed at the end of a TV or radio commercial might seem to be useless, 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 or a claim of a business includes more than just the cost of the service or product i.e., facts are added (“free”, “instant rebate”, “today only”, “guaranteed”, ) – the business may be required to make additional disclosures. The public will hold the businesses’ feet to the fire if a fact the public considers 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.

Questions to ask include where will your ad appear, in what medium ,and what is the intended target? With the choices of advertising media available to a business, it is not uncommon for an ad to reach an audience that was not intended to see the ad. In fact, an ad intended for buyers in Houston, Texas could be put on the internet and can be viewed by a consumer in another country. Because of today’s technology and the fact that instant communications that can cover an entire continent in an instant, a business might not know what laws could be broken in a jurisdiction different from where the business is located. Therefore, the best advice a lawyer can provide to a business client is to include in its ads only those terms that a reasonable person would believe necessary in order to complete a purchase such as when, where and how the business intended a typical commercial transaction to occur.

The general rule – don’t deceive the public – is subjective, and law enforcement will bring their own preconceived ideas of what should (and should not) be included in a properly crafted advertisement. A business can tempt, but don’t mislead.

Texas law prohibits a business from advertising services and/or products with the intent not to sell them as advertised – both as to condition and price. A deceptive violator can face civil and criminal penalties. Nothing infuriates the public more than the bait and switch — where a business advertises a certain product to entice the public, doesn’t have adequate supply to meet demand, and tries to sell the buyer a substitute service or product. The authorities will act quickly if the business 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 business that should have anticipated large demand and did not prepare for it. A business should disclose if it only has a few of the advertised products so that the customer knows his chances of getting the advertised products are not promising. Additionally, the business 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).

The 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. If a business can place itself in a customers’ shoes, the business 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 your business avoid complaints and lawsuits. Advertising that fully informs will be more beneficial to your business in the long run.