Category Archives: Ad Watchers

Welcome to The Ad Watchers! Join National Advertising Division attorneys on this podcast as they explore advertising claims and what it means to put them to the truthfulness test.

Clear and Conspicuous Disclosures: Can You Read the Fine Print?

For this episode of Ad Watchers, our hosts Eric Unis and Annie Ugurlayan, attorneys at the National Advertising Division (NAD), dive into the fine print to discuss disclosures – the what, when, where, and how of ensuring consumers receive the material information they need to make an informed purchasing decision. 

From small fonts to fast talking and distracting music, our hosts revisit this common issue area in advertising law. Listen in for a discussion of what it takes for a disclosure to be considered clear and conspicuous and uncover lessons learned from a series of print and TV advertisements that didn’t quite meet the standard for transparency. 

For more, listen to Season 1’s episode covering the 4 P’s of a proper disclosure: prominence, presentation, placement, and proximity.

Key Takeaways

  • (1:30) Proper execution of disclosures in advertising is crucial to ensure that consumers notice, read, and understand them.
  • (3:26) Disclosures should be clear and conspicuous, using plain English and being in close proximity to the claim or drawing attention to the disclosure. Hyperlinks should be used carefully, ensuring that important information is not hidden behind them and that they are easily noticeable and understandable.
  • (04:23) Consider the specific requirements of different advertising formats, such as TV, radio, and mobile devices, when designing and placing disclosures.
  • (22:06) Disclosures on packaging should be on the same panel as the claim and easily visible to consumers.
  • (24:30) Font size and readability of disclosures should be prioritized, avoiding the need for magnifying glasses.
  • (25:26) Use plain English in disclosures, keeping in mind that they should be easily understood by the average consumer.

The Best Subject In Advertising Law: Is It Puffery?

For this episode of Ad Watchers, join us for Eric’s favorite ad law topic: puffery, an exaggerated, blustering, or boastful statement or general claim that could only be understood to be an expression of opinion, not a statement of fact. But where is the line between puffery and a claim that needs a reasonable basis?

Our hosts once again revisit a fan favorite and discuss the most recent puffery cases seen before the National Advertising Division, breaking down the various facets of puffery, including the use of emojis, to answer the burning question – does it require substantiation?

Eric and Annie discuss the concept of puffery in advertising law, exploring its definition, application, and recent cases. The conversation delves into the nuances of puffery, its context-specific nature, and the challenges of distinguishing puffery from objective claims. It also addresses the use of symbols, emojis, humor, and pride in advertising, providing valuable tips for navigating puffery in advertising claims.

Key Takeaways:

  • (2:00) Puffery in advertising law is a nuanced and context-specific concept that requires a deep understanding of consumer expectations and the distinction between subjective and objective claims. Advertisers must assess how their target audience perceives various claims and differentiate between what is considered a mere opinion and a factual statement.
  • (8:21) The use of symbols, emojis, humor, and pride in advertising can impact the interpretation of puffery claims. It may lead to challenges in distinguishing puffery from objective claims since symbols and emojis can add ambiguity, humor can blur the lines between exaggeration and deception, and pride-based claims can appear subjective but sometimes imply objective standards.
  • (9:40) When navigating puffery in advertising claims, it is important to fully brief the issues, keep claims general, and tread carefully with humor to avoid denigrating messages. Ensure all team members are aware of the legal nuances, use generalized statements to reduce the likelihood of factual interpretations, and employ humor cautiously to prevent misinterpretation or offense.
  • (12:57) Understanding recent puffery cases and their outcomes provides valuable insights into the application of puffery in advertising law and the challenges faced by advertisers in defending their claims. Analyzing court decisions helps predict how similar claims might be judged, illustrates the evolving standards and expectations in advertising law, and aids in crafting defensible advertising strategies.

More episodes on puffery:

It’s Not Puffery. Do You Have The Evidence To Be #1?

Best Podcast Episode Ever: What is Puffery?

Revisiting Consumer Reviews: Incentivized, Inflated, or Authentic?

In this episode of Ad Watchers, the hosts discuss the topic of consumer reviews and the actions taken by the National Advertising Division (NAD) to ensure their accuracy. They highlight several recent NAD cases related to consumer reviews, including challenges to claims made by Proz hair care products, MyPatriot Supply, Goose Creek candles, and Dr. Squatch. The hosts also provide tips for advertisers on collecting and using reviews, such as ensuring reviews are representative, disclosing incentives, and not inflating star ratings.

Key Takeaways

  • (00:30) Consumer reviews have become an important part of the purchasing process. In the digital age, consumers heavily rely on reviews to inform their buying decisions. The feedback provided by other consumers offers valuable insights into product quality and performance.
  • (6:45) NAD has been actively involved in reviewing claims related to consumer reviews. The National Advertising Division (NAD) diligently scrutinizes advertisements that make assertions based on consumer reviews. NAD takes decisive action against advertisers found guilty of disseminating deceptive or misleading claims.
  • (9:10) Advertisers should not take actions that distort or misrepresent consumer opinions. Distorting or misrepresenting consumer opinions, even if disguised as endorsements, erodes trust and damages brand reputation. Upholding integrity in representing consumer sentiments is paramount for fostering long-term relationships and brand loyalty.
  • (18: 58) Advertisers should be mindful of how reviews are collected and counted. Advertisers must ensure that the methodology used for collecting and tallying reviews is transparent and unbiased. It’s crucial for reviews to accurately reflect the sentiments of the target demographic to maintain credibility
  • (19:34) Incentives for reviews should be disclosed, and star ratings should be representative. Transparency regarding incentives for reviews is essential to maintain trust and credibility with consumers. Star ratings should accurately mirror the overall sentiment of all reviews, providing an unbiased assessment of product performance.

Endorsements & Testimonials – So What’s New?

In this episode of Ad Watchers, hosts Eric Unis and Annie Ugurlayan, attorneys at the National Advertising Division (NAD), revisit the Federal Trade Commission’s (FTC) Endorsement Guides. Given the recent updates to the Guides, the Ad Watchers have refreshed the tips and best practices from Season One for ensuring ad law compliance when using influencers, endorsements, and testimonials in your advertising campaigns. 

This episode presents recent cases before the National Advertising Division (NAD) demonstrating the issues outlined in the FTC’s Endorsement Guides and for each case, outlines the best practices you should follow to stay off the radar of the FTC and NAD.

Some Key Takeaways from today’s episode:

  1. (1:28) Endorsements and Testimonials Integrity: Endorsements and testimonials are essential elements of advertising but must authentically represent the genuine opinions of the endorser. Any material connections between the endorser and the advertiser must be transparently disclosed, ensuring honesty and integrity in consumer communication.
  2. (7:51) Combating Fake Reviews and Influencer Misuse: Addressing the prevalence of fake reviews and the misuse of influencers, including animal influencers, is crucial in maintaining the credibility and trustworthiness of advertising channels. Regulators and industry stakeholders must collaborate to establish stringent measures to mitigate these issues and uphold the integrity of consumer information.
  3. (14:11) Transparency in Review Sites: Review sites play a significant role in consumer decision-making, and it’s essential that they transparently disclose whether rankings and reviews are advertisements or independent assessments. Such transparency empowers consumers to make informed choices while safeguarding against misleading advertising practices.
  4. (19:00) Clear and Conspicuous Disclosures: Transparency is key in consumer communication, necessitating clear and conspicuous disclosures visible across all devices. These disclosures should be positioned in the same location and format as the endorsement, ensuring consumers readily recognize affiliations between the endorser and the advertiser.

For more information, visit: NAD FAQs

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What is the Appeal of an Appeal? Getting to Know NARB

In this episode of Ad Watchers, your hosts discuss a critical link in the chain of advertising industry self regulation: the National Advertising Review Board, or NARB, the appellate body for National Advertising Division cases. 

This episode welcomes NARB Chair and Vice-Chair, Ken Plevan and Heather Hippsley, as well as NARB Manager, Saveeta Dhanai, to discuss the voluntary appeal process, an overview of the distinguished board of experienced industry professionals that hear appealed cases, and some important practices to keep in mind when taking your case to the NARB. 

For more information about this episode, read the show notes here

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