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Getting The Deal Through


Rick Kurnit

Frankfurt Kurnit Klein & Selz, PC

Thursday 02 May 2019

Advertising may be virtually any communication that impacts on consumers’ impressions about a marketer’s products or services, or even policies and practices. Traditional media did not have much difficulty distinguishing editorial content from the paid insertions that were authored by an advertiser, but now the integration of brand messages into the content stream is exploding. Today, virtually all content creators, including trusted news sources, are creating content supported in a variety of ways by advertisers. Public relations and corporate communications that were earlier viewed as ‘editorial’ material, now must be reviewed in terms of the stricter tests imposed on advertising. Press releases, letters to newspapers and content that is placed or even made available in the stream of digital media may be deemed to be advertising. Digital media afford an instant opportunity to move from editorial to purchase, perhaps with a revenue share for the content provider, and this too may cause the content to be viewed as advertising.

Truth in advertising is largely a matter of the techniques that salespeople have always used to overcome consumers’ tendency to doubt the seller’s claims. Grandiose claims couched in extraordinary superlatives, incapable of any kind of verification and not addressing any specific or absolute characteristic of the product are still mere ‘puffery’. They get the consumer’s attention, but they are just ‘hot air’. They are not likely to convince the consumer to purchase the product on any basis that the consumer cannot evaluate. Truth becomes an issue when apparent, objective or independent evidence that supports the advertiser’s claims, particularly those that the consumer cannot independently assess, provides the consumer with a reason to purchase.

However, when a brand makes an actual, objectively provable claim about its product or service, at least where it is likely to influence consumers’ purchasing decisions, the brand is likely to be held to a burden of having proof of whatever is communicated, at least to the audience to whom the content is directed. If there is some aspect of the advertising that serves to enhance the credibility of the advertiser or some message that serves to overcome consumers’ natural tendency to discount the claims because they are made by the seller of the product, the net communication must be subjected to review. Any factual claim that enhances the credibility of the message or the messenger must be true and be substantiated by appropriate proof.

A product demonstration or test of product performance permits the consumer to rely upon his or her own eyes. A consumer stating his or her own personal experience with the product provides ‘independent, unbiased’ verification of the seller’s claims. Expert testimony and scientific explanations from professors or doctors make extraordinary claims believable. Reliable reports of many satisfied customers similarly provide a substitute for having to take the seller’s word for the truth of his or her claims. And finally, a money-back guarantee suggests that performance is measurable and real. In short, facts, demonstrations, tests, endorsements, surveys, guarantees and other means to overcome consumers’ natural cynicism about claims made by advertisers and enhance the credibility of the advertiser’s message must be supported by hard data and controlled proof.

It is not a question of what was intended. Advertising is judged based on what is communicated and understood by the consumer. Thus, we must define the relevant consumers who are likely to be influenced by the advertising in making purchasing decisions. This raises the question of what these consumers understand before seeing the advertising and what they take away from the advertising. Regulators may view the communication from the perspective of the reasonable consumer to whom the advertising is directed acting reasonably in the circumstances. Or they may seek to protect the ‘village idiot’: ‘the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyse but are governed by appearances and general impressions’. Thus, regulators may allow for a portion of the audience being confused, but in most jurisdictions, advertising must meet the test with respect to any substantial portion of the audience.

In the digital world in which the current generation has grown up, the consumer is likely to become more sophisticated and experienced in perceiving communications and discerning what is authentic and unbiased. The content that is now being created and displayed on the World Wide Web is sponsored, supported, encouraged and disseminated by advertisers in new ways and with new technologies. Advertisers’ greatest asset is the brand equity of a trusted brand. A misstep in communications that tarnishes that brand or damages the brand’s relationship with consumers can be catastrophic. In a global ecosystem, a misstep in one part of the world can reverberate worldwide. Attorneys responsible for guiding advertisers on compliance with best practices and avoiding liability face an increasingly difficult task as different jurisdictions must be considered in reviewing global communications and training communications professionals to understand the universal principles that we call ‘truth in advertising’.

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