2020Directory_FNL_FlippingBook

Recommended Practices 1. If you conduct direct marketing, periodically scrub your target lists for persons who have excluded themselves from the means of communication you intend to use (telemarketing, faxes, and email). You should keep a separate list of consumers who opt out of telemarketing, faxes, and email and be careful before using an auto dialer or prerecorded message to obtain the appropriate consents from the party you are calling or texting. This consent must include specific disclosures and comply with specific content requirements. Adequately scrub telemarketing lists of phone numbers against the FTC’s National Do Not Call Registry, your state’s Do-Not-Call list and your dealership’s list of persons who have asked not to be called. The Data & Marketing Association (www.the-dma.org) also maintains “do not contact” lists that you should scrub your lists against. If you are telemarketing, get assurances from vendors on having obtained customer consents and exclusions of persons listed on federal and state Do-Not-Call lists, then double-check against Do-Not-Call lists, as well as your own dealership’s list of customers who have asked not to be called. The class action liability potential under the TCPAmakes this a critical area for you to be compliant. Also, note that many State Attorneys General and Motor Vehicle Departments have their own rules or guidelines for advertising motor vehicles. 2. Advertisers must ensure that any express or implied claims made in their advertisements are truthful and substantiated. Remember that every statement in an ad can be literally true, but if its net impression is misleading, the ad is deceptive. Be able to prove the truth of every statement made or implied in your advertising and consider your advertising’s net impression. For example, if you are advertising sales of repossessed or off-lease vehicles, be prepared to show that substantially all of the vehicles meet those criteria. If your ad says, “factory authorized,” be prepared to produce the written “factory authorization” that supports that statement. Be wary of advertisements promising credit to subprime borrowers (e.g., “bankruptcy not a problem”). 3. Don’t stack rebates to advertise the price of a vehicle. Rebates that are available to the general public can be itemized as deductions from the MSRP. You can show additional conditional rebates separately from the vehicle pricing and those should be itemized along with a clear and conspicuous explanation of the qualifications for each. Note that state laws also govern the advertising of rebates such as the California and Nevada laws referenced above. If an advertisement would mislead consumers in the absence of additional information, the disclosure of that information must be “clear and conspicuous.” Advertisers should apply the four P’s of effective disclosures – prominence, presentation, placement, and proximity – as a starting point. The FTC has stated if a disclosure is not made clearly and conspicuously, it is the equivalent of not making the disclosure at all. Avoid putting required disclosures in“mouse type”or in a color that blends into the background or in pop-ups on websites. Use plain English and don’t use abbreviations not commonly understood by the public. Fast-talking TV or radio disclaimers are also problematic. The CFPB specifically has cited fast-talking telemarketers as part of a deceptive selling process. 4. If you use an advertising agency, try to get the agency to indemnify you if the ads it produces lead to litigation or an FTC or Attorney General action. It is a best practice to have your attorney review all your advertising before publication. 5. Use caution in promoting your products in digital media. Remember that advertising online must be considered from the perspective of all devices that will be used to view it, including cell phones and tablets. Make sure any disclosures are clear and conspicuous on any type of device used by consumers. In addition,

2020 MEMBERSHIP DIRECTORY & SERVICES GUIDE HOT TOPICS

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