2020Directory_FNL_FlippingBook

Advertising, promotional materials and other disclosures should be tailored to the sophistication of the target audience. In considering whether an advertising is deceptive, the FTC considers the entire advertisement, transaction or course of dealing to determine how reasonable consumers would be likely to respond. Many factors may be considered in determining how a reasonable person would respond to a claim or practice. To that end, the FTC may consider: - How clear is the representation? - How conspicuous is the qualifying information? - How important is the omitted information? - Do other sources of for the omitted information exist? - How familiar is the public with the product or service (i.e. car or aftermarket product)? You should consult with your attorney for specific guidance, but the following is a practical guide to help you draft your marketing materials. Claims Conveyed by the Advertisement In determining whether an advertisement is deceptive, an advertiser must first understand what messages the ad is likely to convey to reasonable consumers. To do that, the advertiser must consider the advertisement as a whole and the“net impression”it creates. Even if everything stated in the ad is true, it can create an overall message that is deceptive. Advertisements may convey both express and implied claims. An express claim is one that states a fact directly, while an implied claim is one that literally says one thing but suggests something else. Advertisements often can be subject to multiple interpretations, some of which are true and some not. An advertisement can be deceptive if any one reasonable interpretation is false or misleading, even if other interpretations are accurate, and even if the advertiser didn’t intend for the advertisement to be perceived that way. Note that“reasonable”does not mean sophisticated or highly educated, however. Materiality of the Claims Claims that are likely to influence consumers’ decisions about whether to buy a product or service, or about how they use it, are considered material. The FTC often presumes that certain types of claims are material, including express claims and claims about a central feature of the product, the product’s cost, or its safety. Keep in mind though that most claims are likely to be considered material, unless they are “puffery”– claims that are so broad and fanciful that consumers do not take them seriously (for example, “world’s best car”). Substantiation of the Claims In addition to claims that are false or misleading, it is deceptive to make a claim about an objective feature of a product or service without having competent and reliable evidence to substantiate the claim at the time it is made. This is the case even if it later turns out that the claim was true. The type and amount of evidence that is necessary depends on the type of claimmade. For example, a dealer that wants to advertise that it has the“lowest prices in the county”should survey the prices for the relevant comparison at the other dealerships in that county.

HOT TOPICS

161 2020 MEMBERSHIP DIRECTORY & SERVICES GUIDE