I’m sure you’ve heard about the class action lawsuit that claimed that Vibram misrepresented how its FiveFingers shoes benefited consumers’ health. In the settlement, Vibram offered to provide a refund to any purchaser who requests it. Vibram created a site about the settlement that will provide information, including how to file a claim if you qualify.
Unfortunately, cases like this are not uncommon. I saw a similar article in the Wall Street Journal last week where Proctor & Gamble (makers of Crest) sued Hello Products for false advertising when Hello put a claim on its toothpaste that said the product was “99% Natural.” Hello was forced to remove ~100,000 tubes of toothpaste from store shelves, change the claim “99% Natural” to “Naturally Friendly,” and pay “six figures” for legal fees related to this case.
So how do you avoid these problems? It’s pretty easy – just be truthful.
Federal rules about truth in advertising require that all your advertisements be “truthful and non-deceptive.” If you make any claims, you must be able to back them up with evidence. If you have endorsements, they must be truthful and accurate, and you must disclose when a person is compensated for giving their opinion. (This includes getting free products.)
If you violate these rules, you might receive a cease and desist letter from your competition or the Federal Trade Commission which is tasked with protecting consumers. You could also be fined by the FTC, be sued for unfair competition and/or false advertising by another company, and/or face a class action lawsuit from consumers who claim that they were deceived into buying your product.
When you are working on your marketing campaigns, be careful that your marketing team doesn’t create content that crosses the line from mere puffery into false advertising. If you haven’t done so yet, review the FTC’s Truth in Advertising website. They have useful information about required disclosures, using endorsements and testimonials, and making health or “green” claims about your products. If you have legal counsel, consider inviting them to your marketing meetings or at least have them review your materials to make sure that your team doesn’t inadvertently cross the line into false advertising.
If you want to talk more about truth in advertising, you can connected with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. There’s also a chapter dedicated to endorsements and blogging in my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can also subscribe to the Carter Law Firm newsletter.
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