Social media law 101 |
False advertising
The Federal Trade Commission (FTC) regulates consumer protection laws that ensure an advertisement must be truthful, not be misleading and have evidence to back up claims. The Federal Trade Commission Act, Section 5: Unfair or Deceptive Acts or Practices clearly prohibits “unfair or deceptive acts or practices” and is enforced across all advertising mediums, including social media platforms.
An act or practice is unfair when consumer injury is substantial and not outweighed by other benefits or the act or practice is immoral, unethical or unscrupulous and offends established public policy.
Mangini v. R. J. Reynolds Tobacco Company is the classic example of this. In 1991 California attorney Mangini accused R. J. Reynolds, makers of Joe Camel cigarettes, of targeting minors with its "Joe Camel" advertising campaign. They ended up settling out of court and discontinuing use of the animated camel as well as provided $10 million to fund anti-smoking efforts targeted at young people.
Typically you are more worried about deception which means it misleads consumers and affects their behavior or buying decisions. False or misleading claims are always considered deceptive, but even if you’ve only shared true statements in your advertising or social posts, you could still be liable for deceiving consumer. It’s all about the impression you leave with consumers.
Most importantly, relevant limitations and qualifying information should be incorporated into the primary claim of the advertisement if possible to avoid any misunderstanding. If that is not possible due to space constraints, separate disclosures that are clear and conspicuous can be placed to qualify the claim, and advertisers should consider the following as recommended by the FTC:
In general, advertisers should put themselves in the position of the consumer when analyzing an advertisement to determine if all appropriate disclosures and claims are clearly placed and easy to understand, and should review the entire ad thoroughly.
Social media has made advertising issues even more important and that’s why the FTC has provided these guidelines. The guide are seen as more of advice or counsel as not every time you vary from the guidelines are you actually engaging in deceptive behavior.
An act or practice is unfair when consumer injury is substantial and not outweighed by other benefits or the act or practice is immoral, unethical or unscrupulous and offends established public policy.
Mangini v. R. J. Reynolds Tobacco Company is the classic example of this. In 1991 California attorney Mangini accused R. J. Reynolds, makers of Joe Camel cigarettes, of targeting minors with its "Joe Camel" advertising campaign. They ended up settling out of court and discontinuing use of the animated camel as well as provided $10 million to fund anti-smoking efforts targeted at young people.
Typically you are more worried about deception which means it misleads consumers and affects their behavior or buying decisions. False or misleading claims are always considered deceptive, but even if you’ve only shared true statements in your advertising or social posts, you could still be liable for deceiving consumer. It’s all about the impression you leave with consumers.
Most importantly, relevant limitations and qualifying information should be incorporated into the primary claim of the advertisement if possible to avoid any misunderstanding. If that is not possible due to space constraints, separate disclosures that are clear and conspicuous can be placed to qualify the claim, and advertisers should consider the following as recommended by the FTC:
- Plain language should be used
- Disclosure should be placed as close to the claim as possible, and noticeable to the consumer (considering size, color, and visual graphics)
- Disclosure should be optimized for all devices and platforms the advertisement will be viewed on, and any technological limitations should be addressed
- A hyperlink may be used to lead consumers to the disclosure, but the link should be obvious, labeled appropriately, take consumers directly to the landing page, be placed as close to the claim as possible, and should be styled consistently
- Scrolling should be avoided, but if it is necessary text or visual cues should be utilized to encourage consumers to scroll
- In e-commerce, disclosures should be placed before consumers make a purchasing decision
- Disclosures should be repeated as necessary for lengthy websites and purchasing lifecycles
- Disclosures should not be regulated to “terms of use” or similar contractual agreements
- In audio claims, audio disclosures that equally clear should be used
In general, advertisers should put themselves in the position of the consumer when analyzing an advertisement to determine if all appropriate disclosures and claims are clearly placed and easy to understand, and should review the entire ad thoroughly.
Social media has made advertising issues even more important and that’s why the FTC has provided these guidelines. The guide are seen as more of advice or counsel as not every time you vary from the guidelines are you actually engaging in deceptive behavior.
Lanham Act
Only the FTC can enforce the FTC Act, but all states have similar laws that mirror these regulations. Non-government entities can bring legal action through the Lanham Act. The Lanham Act, enacted in 1946, prohibits false representation regarding origin, sponsorship, endorsement or association of goods or service with another and false or misleading description of fact, or false or misleading representation of fact. It is the primary trademark statute of law in the US, and prohibits the unauthorized use of a registered trademark in commerce that could cause consumer confusion or deceivement regarding the association, connection or affiliation with the source of the trademark.