Website Advertising: 2 Legal Traps To Avoid When Writing Your Own Copy
If you're like most small ecommerce businesses, you're
likely to write your own marketing copy. Be aware that this
is a highly regulated area that could result in substantial
liability. I've boiled most of the regulations into 2
basic traps you must avoid.
What is Marketing Copy?
Wikipedia defines "copy" as written material, in contrast
to photographs or other elements of layout, in a large
number of contexts, including magazines, advertising, and
book publishing. In advertising, web marketing and similar
fields, copy refers to the output of copyrighters, who are
employed to write material which encourages consumers to
buy goods or services.
Web copy has one major advantage over offline copy - it is
interactive. Hyperlinks provide you with powerful tools to
lead a potential customer through a pathway designed by you
which ultimately leads to a conversion to your call to
action.
Trap No. 1: Failure To Substantiate Claims Before
Publication
When you write your own marketing copy, you necessarily
make certain "claims" - statements upon which a consumer
may reasonably rely in making a purchase decision. In so
doing, you're facing another legal pitfall.
Legally, claims are extremely important. The Federal Trade
Commission (FTC) Act, 15 USC Sec. 41-58 and accompanying
regulations prohibit "unfair or deceptive acts or
practices". Unfair or deceptive acts or practices include
claims that are not substantiated before the claim is
publicly disseminated.
So review your ads carefully, and be sure that you can
substantiate and back up your ad claims.
Here are some examples of claims and the related challenges
regarding substantiation and back-up:
* If you claim "best value", understand that it's a
promise that is very broad in scope - essentially, you're
promising that your offer is worth more than the asking
price - if you're going to make this claim, you'd better
provide the proof on your site.
* If you claim "we're no. 1", you need to be very specific
regarding how you determine no. 1 - no. 1 at what? - in
gross sales, in sales growth for a specific period, in the
number of widgets sold?
* If you claim the "latest and greatest", "next
generation" or words to that effect, you should
substantiate how the claim is true - explain specifically
how you justify the claim in relation to other competitive
products on the market.
* If you claim "user friendly" or "easy-to-use", you need
to be specific regarding substantiation of specifically how
much time a certain task routinely takes, exactly which
steps are automated.
* If you offer a "risk-free guarantee", understand that
even a free evaluation is not completely risk-free because
the evaluation takes time for the customer to evaluate -
time is money, so-to-speak, so a better approach is to
promise an unconditional refund, no questions asked.
Trap No. 2: Avoid Untrue And Deceptive Claims
In addition to substantiating claims before making them, be
careful not to make untrue or deceptive claims. Certain
types of claims should be avoided altogether, including:
* never claim that you have a cure for anything - not even
large drug companies with products that have been the
subject of years of testing will make such a claim, so you
shouldn't either;
* never specify a level of revenue or profits that a user
will achieve, even if you or another purchaser has achieved
a specific level of revenue or profits - remember the old
cliche, "your mileage may vary";
* never promise specific results - again "your mileage may
vary".
The FTC has special rules governing any use of the term
"FREE" (or similar words to that effect), which the FTC
believes is frequently used in an untrue or deceptive way.
Similar words to "free" include:
* Buy 1-Get 1 Free; * 2 for 1 Sale; and * 50% off
with the purchase of 2.
According to the FTC: "[t]he public understands that,
except in the case of introductory offers in connection
with the sale of a product or service, an offer of 'Free'
merchandise or service is based upon a regular price for
the merchandise or service which must be purchased by
consumers in order to avail themselves of that which is
represented to be 'Free'. In other words, when the
purchaser is told that an article is 'Free' to him if
another article is purchased, the word 'Free' indicates
that he is paying nothing for that article and no more than
the regular price for the other. Thus, a purchaser has a
right to believe that the merchant will not directly and
immediately recover, in whole or in part, the cost of the
free merchandise or service by marking up the price of the
article which must be purchased, by the substitution of
inferior merchandise or service, or otherwise."
Conclusion
In summary, be aware that what you say in your marketing
copy is heavily regulated. You need to be careful not only
to substantiate ad claims before you post them to your
site, but also use certain key terms with great care so as
not to mislead or deceive consumers.
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Chip Cooper is a leading intellectual property, software,
and Internet attorney who advises software and ecommerce
businesses nationwide. Chip's 25+ years of experience
include 20 years as Adjunct Professor of Computer Law at
Wake Forest University School of Law. Visit Chip's
http://www.digicontracts.com site and download his FREE
newsletter, Website Law Alert, and also learn about his
"Do-It-Myself" and "Do-It-For-Me" service options.
