united-states internet branding commerce disclaimers
Do claimless advertisements need to have disclaimers?
<p>My question concerns the requirement for advertisements to carry a disclaimer stating that they are advertisements, specifically in the United States. According to the FTC (though not in these words), an advertisement delivered through a trusted medium, such as the words of a celebrity or the side of an email client, has financial incentive to exaggerate the effectiveness of the product. Therefore, ads can mislead the public by using the trust in the medium to present the biased claims as truth, if it is not made clear that the information was sponsored and therefore may not be entirely unbiased. </p>

<p>Obviously, if a blogger publishes a blog post stating that he or she used a given product and lost X amount of weight in Y amount of time, and this blogger received compensation from the maker of the product for this blog post, it would be misleading not to disclose that this was a paid advertisement. However, what about ads that make no claims whatsoever?</p>

<p>If a Coca Cola employee were to spray paint the Coke logo onto a telephone booth, this could encourage people nearby to drink more Coke, but there was no disputable claim made. Not only that, but a similar situation could happen organically as well, if say a supermarket marked its beverage aisle with the Coke logo. There's no claim, no possible source of exaggeration, simply an image, and the assumption that it will increase sales. Does this logo on the telephone booth then need a disclaimer? The same logic could be extended to the giant advertisements in Times Square in NYC, which often do not feature claims, just branding.</p>

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<p>As a preliminary matter: there is no, so far as I'm aware, a blanket FTC requirement that every ad carry a disclaimer or a label. </p>

<p>Some FTC rules do require disclaimers in certain circumstances. <a href="https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf" rel="noreferrer">This document</a> gives some background. In summary: if a claim made in an ad is false, a disclaimer can't fix it. If it is true, a disclaimer is unnecessary. A disclaimer only comes into play if the ad is true, but contains a potentially misleading implication. So, for example: </p>

<pre><code>"In a survey, 4 out of 5 doctors recommended our product."
</code></pre>

<p>If 4 out of 5 doctors actually recommended some other product, no disclaimer will help you. If the survey was taken in 1901, or the only choice was between your product and being eaten by wolverines, you will need to disclose that fact prominently in your ad.</p>

<p>One of the most commonly encountered disclosure requirements, and one you mention in your question, are disclosures related to endorsements and testimonials. The endorsement rules are set out <a href="https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf" rel="noreferrer">in this document</a>, but in general, it's the same deal: if there's something about the endorsement that would qualify it in the mind of a person evaluating whether to buy the product, then you need to disclose that. This is why you see disclaimers such as:</p>

<ul>
<li>Stating that people praising a product are actors, not real users of the product</li>
<li>Stating that celebrities are paid endorsers, not just enthusiastic users of the product</li>
</ul>

<p>If you post something on your personal blog raving about a product, for instance, and don't disclose that you were paid to say nice things about the product, that could be a violation. There are more good examples at the link above.</p>

<p>The common ground in all of these situations is that the advertisement or endorsement is in some way actually or potentially misleading. If you run an ad that is not misleading in any way--for example, just a poster with the product logo or a non-informational tag line ("Coke: It's A Beverage!"), there is no need for a disclaimer that I'm aware of.</p>
