Paul Horton: Don’t Make These Advertising Mistakes

Before you air that first advertisement, you’ll want to make sure you’re both in compliance with the law and consistent with your company’s vision. Once you’ve run a print ad, television commercial, or Internet advertisement, you can’t take it back. You can’t predict the future or control for every possible mishap, but you can learn from the mistakes of those who have come before you.

The following advertising mistakes provide valuable lessons for the entrepreneur embarking on an advertising campaign. See the Marketing and Advertising Laws section for additional articles and resources.

FTC Penalities

Sellers of BluBlocker sunglasses were penalized $50,000 by the FTC in the recent past for violating the Mail and Telephone Order Rule which requires companies accepting mail and telephone orders to ship the product within a specified time period, or notify the buyer of their option to either cancel the order (and receive a refund) or consent to the delay. When J S & A Group, Inc., sellers of BluBlockers, failed to ship sunglasses in compliance with the Rule a complaint was made, and the FTC took action.

Lawsuits over Pizza Advertising

In March 1998, the National Advertising Division (NAD) of the Council of Better Business Bureaus determined, in disagreement with challenger Pizza Hut, that Papa John’s International’s use of the trademarked phrase “Better ingredients. Better pizza.” was not a false superiority claim. Papa John’s argued that the phrase did not make a superiority claim but instead communicated the fact that better ingredients will result in a better pizza. Furthermore, Papa John’s argued that even if the trademark contained a competitive message, it had substantiation that its pizza was in fact better because of the use of fresher ingredients.

Although the NAD agreed with Papa John’s, it did ask that the company narrow the context of its advertising to focus upon the specific type of pizza which was tested (thin and traditional crusts, in this case, as opposed to pan pizza). Pizza Hut, unhappy with the determination of the NAD, took the case to the United States District Court for the Northern District of Texas. The trial judge agreed with Pizza Hut that when engaging in comparative advertising, such as through use of the trademark “Better Ingredients. Better Pizza.,” it is unlawful to make false comparisons or engage in misleading advertising. The trial judge ruled that Papa John’s had to immediately stop using the phrase on all pizza boxes and delivery vehicles.

False Advertising Can Lead to Legal Trouble

In May 2000, the NAD announced that it recommended that Kal Kan Foods, Inc. modify its advertising to avoid conveying the message that Whiskas Homestyle Favorites in Flavor-Lock pouches “tastes better” than canned cat food. The accuracy of Kal Kan’s Whiskas advertisements was brought to the attention of the NAD by Friskies Pet Care Division of Nestle USA, Inc., who is a competitor of Kal Kan. Upon review, the NAD, while cognizant of Kal Kan’s reluctance to submit highly confidential documents for examination, found that the evidence which was provided by Kal Kan was not sufficient to support the superior taste message conveyed by its advertising. Kal Kan disagreed with the NAD and has appealed the matter to the National Advertising Review Board.

Hair Regrowth Law Firm

In September 1999, the NAD announced that the advertising claims for Adam Lewenberg, MD’s Formula for Hair Regrowth were not properly substantiated. Advertisements for Dr. Lewenberg’s hair formula stated that the product was “clinically proven” to regrow hair on nearly 90 percent of patients, that it worked within a three-month period, that it was permanent, that it was safe, and that it was “superior” to all other medications whether prescription or over-the-counter.

As support for his claims, Dr. Lewenberg provided the NAD with an article published in Advances in Therapy which was, in essence, an anecdotal reflection of Dr. Lewenberg’s own experience with use of his product on over 1,000 of his patients. Dr. Lewenberg argued that this “study” substantiated the various claims made in his advertisements. The NAD disagreed with Dr. Lewenberg and noted that claims that are based on “scientific evidence” must be supported by adequate and well-controlled clinical studies, not anecdotal reflections. In addition, evidence that provides substantiation for “establishment” claims is generally held to a higher standard than that required for other claims. The NAD determined that Dr. Lewenberg’s study contained serious flaws and that all claims in his advertisements were unsubstantiated.

The NAD disagreed with Dr. Lewenberg and noted that claims that are based on “scientific evidence” must be supported by adequate and well-controlled clinical studies, not anecdotal reflections. In addition, evidence that provides substantiation for “establishment” claims is generally held to a higher standard than that required for other claims. The NAD determined that Dr. Lewenberg’s study contained serious flaws and that all claims in his advertisements were unsubstantiated.

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