Tag Archives: Advertising Law

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?

Episode Show Notes: Where is the Line Between Ethical Design and Dark Patterns?

0:00-1:26 This Ad Watchers episode provides insight into “Dark Patterns.” Coined by Harry Brignull in 2010, the term “dark patterns” is used to describe design practices that trick or manipulate users into making choices they would not otherwise have made, and that may cause harm. Eric Unis, Senior Attorney at the National Advertising Division (NAD), and his colleague Annie Ugurlayan, NAD’s Assistant Director, are joined by guest Deputy Director Katherine Armstrong. Katherine is a deputy director of the National Advertising Division (NAD) at BBB National Programs. She manages NAD attorneys and the overall case management and handling of monitoring and competitor-challenged truth-in-advertising cases, supporting long-term operations planning for the 50-year-old program.

Continue reading Episode Show Notes: Where is the Line Between Ethical Design and Dark Patterns?

Where is the Line Between Ethical Design and Dark Patterns?

Think about the times you felt tricked or frustrated by a membership or subscription that had a seamless signup process but was later difficult to cancel. Something that should be simple and transparent can be complicated, intentionally or unintentionally, in ways that impair consumer choice. These are examples of dark patterns. Unfortunately, dark patterns are becoming increasingly common as companies look for ways to boost profits. While some may seem harmless, others can have serious consequences for users. 

Where is the line between ethical, persuasive design and dark patterns? In this episode of Ad Watchers, hosts Eric and Annie are joined by guest Deputy Director of the National Advertising Division, Katherine Armstrong to answer that question. Together, these three explore dark patterns and the FTC’s recent report on the topic, provide some real examples from NAD cases, and deliver commentary on the FTC’s response to the proliferation of these dark patterns. Listen now to understand the most common dark pattern tactics and how you can avoid them while still producing compelling, persuasive advertising.   

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

Episode Show Notes: Revisiting the Best Podcast Episode Ever: What is Puffery?

For the fifth episode of season two, hosts Eric Unis and Annie Ugurlayan reintroduce a fan favorite episode from season one. In this episode Eric makes his Ad Watchers debut as a guest,
joining hosts Hal Hodes and La Toya Sutton to discuss puffery.
There is no universal definition for this term, but La Toya provided the following description: “Puffery is an exaggerated, blustering, or boastful statement. Or a general claim that could only be understood as an expression of opinion, not a statement of fact.”

Continue reading Episode Show Notes: Revisiting the Best Podcast Episode Ever: What is Puffery?