Your agency’s work is all about creating impact for its clients. Whether that impact is links clicked, posts liked, or dollars spent or donated – the goal is to persuade someone to take some action that creates a positive business result for the client.

In the eyes of the Federal Trade Commission (FTC), each of those persuasive tactics is considered advertising.

And the FTC is, shall we say, extremely interested in making certain that advertising is clear, truthful and not misleading to any potential consumer or buyer.  So how do you avoid “interesting” the FTC in your next campaign, ad or marketing strategy?

Here are 5 ways to keep the FTC happy or avoid their interest all together:

1. Make Product or Service Claims that Are Verifiable

Your top guiding principle in publishing any claims, promises or benefit/feature statements in client marketing should be this:  “If we don’t have the proof, we don’t make the claim.”

The FTC’s rules require that any claim be clear (easy for anyone in the buying audience to understand), truthful, and not misleading (stated in a way that could confuse a consumer or have more than one logical interpretation in the context of the ad).

How does your agency meet this bar? The short answer is:  not without the cooperation of your client. You’ll need supportive product testing, third party research, consumer survey results or other claim-relevant information in hand before a claim is ever presented in published marketing (getting it afterward won’t help).

Agencies can make this process easier by making it standard practice to ask the right questions of their clients as they are designing the marketing and communications messaging. For example:  “How do you document your product performance stats?” “Have you conducted any customer surveys?” “What’s the source of your information about your competitor’s services?” The use the data on hand, or lack thereof, to make strategy decisions about ad claims.

And when it’s a close call, seek a legal review before you spend resources creating the messaging.

2. Use Clear and Understandable Language

Words and phrases that mean something to your client might be unclear, or, worse, misleading, to a buyer who views a piece of marketing. Choose language that could be easily understood by a very broad audience even if the intended audience is narrow.

For example, do you ever wonder why pharma ads tell you not to use a medication if you’re allergic to the medication? Redundant, but certainly clear.

And if your audience is a vulnerable one – like children or senior citizens, or your client’s products are highly regulated – like healthcare, pharma, or financial services and insurance, it’s even more critical to be clear and brief in your claims language.

Test your claims language before you publish it, and not just within your agency or your client’s marketing team. Pull together a focus group, do a brief survey, or use whatever magical tactics your agency has for determining how a piece of copy will be interpreted by an intended audience. Then adjust for clarity as needed.

Remember that the FTC is just as interested in claims that are misleading as they are in claims that are false. The easiest way to be (unintentionally) misleading is the use of unclear claims and language in your advertising.

3. Don’t Rely on the Disclaimers and Small Print

One strategy your agency should not count on is using disclaimers and “small print” to counter-balance an unclear or undocumented claim. Don’t misunderstand – you will need disclaimers in many circumstances, but they will not undo the damage that either of those deficiencies can cause to your campaign.

Disclaimers are necessary and helpful in a number of ad claim scenarios. Some examples:

• Using Customer Reviews – more on that below, but where the customer received anything of value for leaving the review (a prize, a discount, free product), a disclaimer is needed.
• Discussing Product Results Claims – if the result highlighted in an ad is exceptional or above average, it’s very likely not a typical result a consumer can expect. These claims need disclaimers that disclose what a typical user should expect to experience.
• Comparative Advertising Claims – the circumstances under which the products or services were compared will usually require disclaimers.

Whether and when a disclosure or disclaimer are needed in your marketing claims is a highly case-specific decision. The safest guideline for your agency is that the more extraordinary the claim, the higher the likelihood a disclaimer will be needed.

Despite their utility, however, no amount of small print will negate the impact of a claim that doesn’t appear on its face to be clear and truthful.

4. Collaborate With Influencers Who Understand the Rules

The FTC has devoted an entire body of its work to regulating influencer marketing. If your agency creates or manages influencer campaigns you are likely well-aware of this, and we’ve published a lot of helpful tips about influencer marketing compliance and updates on FTC rule revisions if you need more help there.

So to be sure, there’s a lot of work for your agency to do to successfully manage influence campaigns, and your brand clients are counting on you to be on top of it all. But it’s just as critical to work with influencers and content creators who understand the FTC’s rules too. These are your front-line teammates to ensure the marketing claims and content put out for brands are rule-compliant.

Top tips for getting ahead of any compliance issues that could get your client on the FTC’s radar:

• Plan your content strategy with the influencer well in advance
• Use appropriate FTC compliance responsibility language in all influencer agreements (best practice – attach a summary of the compliance guidelines to their contract).
• Have a clear discussion with the influencer or their team pre-campaign to get a comfort level with their understanding of the rules
• Monitor content closely when it’s posted so that you can react quickly to any issues with transparency, missing disclosures, or product claims.
• Consider creating disclosure templates and standards to share with all influencers and content creators, just like you would share the client’s brand standards.

If you have any concerns that the influencer or creator doesn’t understand, or is comfortable getting “close to the line” on compliance, reconsider their fit for the campaign.

5. Realize that Consumer Reviews are Advertising Too 

The rising use of consumer reviews and other consumer-generated content in marketing has also piqued the FTC’s interest. There are recent and continually evolving guidelines being published about the use and display of consumer reviews in particular.    

Some specific areas of FTC concern that your agency should be aware of as it works with brands on their review strategies:

• Cherry-picking only positive reviews for display. Don’t do it. The FTC prohibits this.
• “Gating” reviews so that consumers who leave a positive review are led to a a different online experience than those who leave negative reviews. The FTC frowns on this.
• Deleting bad reviews. This one’s tricky. Your client has the right to address falsely published reviews (and review spam is definitely a problem), but deletion is a slippery slope and can lead to cherry-picking concerns on the part of the FTC. Get legal guidance on how to address these as well as management of comments and replies if this becomes an issue.
• Giving any sort of consideration for a consumer review absolutely requires disclosure – whether they posted the review to enter a contest, or got a coupon or special invitation, this is consideration and needs to be disclosed immediately adjacent to the review.

The best way to get ahead of any regulatory issues associated with display or use of reviews in marketing is to make a plan before they’re published. That plan should give consideration to the questions:  who are we asking, how are we asking, and what are we providing in exchange for the review?   

Every agency creative brief or strategy session should include some space for evaluating any FTC-associated advertising risks. Meanwhile, your team should spend some time getting some passing familiarity with the risks so that they know what questions to ask before your next campaign.

When in doubt, we’re here to help. Reach out:  info@legalandcreative.com