The Basic Legal Issues Involved in Marketing Your Product or Service

14 07 2011

When you create a website, video, document, or other material for the purpose of advertising your business, your main goal is to convince potential customers to buy from you. However, you also need to make sure that your advertising materials comply with the law. Some of the things you need to think about are:

What Claims Do You Make In Your Advertisement?

There are two types of claims you need to analyze in order to ensure compliance: Express claims, which are claims you make directly, such as “Our product promotes weight loss,” and implied claims, which are implied by the ad without being stated expressly.  Both types of claims are treated the same – you can’t imply a claim that you could not make directly, and all claims must be truthful, not misleading, and have adequate substantiation.  You must assess the net impression of your advertisement, which includes the text, product names, and depictions of the product or other images in the advertisement.

Do You Omit Important Information?

If your advertisement fails to reveal information which is material in light of your advertisement, it might be misleading. Any qualifying information must be disclosed prominently, and not hidden in fine print, and it must be simply and clearly stated.

Can You Provide Evidence?

You must have a reasonable basis for the claims you make. The amount of evidence you need depends a lot on what you are selling. If your product or service is something that consumers will have a hard time evaluating on their own, you need a high level of substantiation for your claims.  How much substantiation is required depends on many factors, including what level of substantiation is considered reasonable by experts in
your field.  

Testimonials, Endorsements, Books, and Articles

You cannot make claims either through consumer or expert endorsements that would be deceptive or could not be adequately substantiated if made directly, and it is irrelevant that a testimonial represents the honest opinion of the endorser. If you use an expert endorser, it is your responsibility to make sure he/she has appropriate qualifications, make sure he/she has conducted a proper examination of the product, and disclose any connection  between the endorser and the product which might affect credibility. You also can’t use other literature in a way that would be misleading.  If you quote another publication, you may be required to substantiate the claims in that publication if it does not include adequate substantiation.

Need More Information?

More information about the laws related to advertising may be found at: http://business.ftc.gov/advertising-and-marketing. There, you will find helpful information, policy statements, and legal guides regarding advertising in general, as well as rules and information about advertising in specific industries.  Remember that certain regulated industries may have additional advertising rules.

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