Don’t Get a Demotion for Illegal Promotions!

As business owners, we’re always looking for exciting ways to promote products and services. Digital media has made promotions and marketing accessible in new, exciting ways. But it’s important to understand the considerations around various ads, sales, deals and offers you provide your potential customers, as these can be highly regulated and subject to various consumer protection laws.

Below are a few tips and tricks when promoting your goods and services online:

1. Make sure you’re clear, honest, and thorough in any deals, discounts or special offers you provide

We love a BO-GO as much as the next guy, and it can be incredibly helpful for engaging customers and making that sale if you offer a special discount or referral program. But it’s important to outline very clear terms for promotions like these, with specific deadlines and expiration dates (so they don’t go on forever), and if there are any specifics or steps a customer has to take to comply, the less likely there will be customer confusion or you having to honor a long-ago discount offer because you weren’t clear on terms. Be sure to disclose any exclusions (for example: “regular-priced items only”) or minimum purchase requirements clearly (for example: “free shipping when you spend $50 or more”) and include clear expiration dates when the offer ends. An attorney can help review offered coupons and discounts for requirements specific to your industry, the language you want to use, and your customers. 

2. Don’t make false or misleading claims

Online advertising is regulated by the Federal Trade Commission as well as other federal and state agencies, depending on the products, services, industry and type of advertisement. This includes social media posts. 

The FTC is very clear that you cannot make false or misleading claims in your advertising (and note, advertising includes product labeling as well — see our resource about product labeling here!). But what is “false” may be easier to spot than what might be considered “misleading” to a reasonable person, such as saying you graduated from law school when you didn’t (okay, that’s clearly false), but it could also include statements taken out of context or not providing full details, leading to customer confusion or misrepresentation. 

One example of this, the FTC has published regulations on false and misleading environmental claims in its “green guides” (found at 16 CFR Part 260), which provide specific examples, such as that it is deceptive to misrepresent, directly or by implication, that a product, package, or service offers a general environmental benefit.

3. Utilizing Influencers or Brand Ambassadors? Don’t take this lightly.

Influencers have become more and more prolific and popular for advertising your brand and products. It makes sense, because they already have an audience and can help you grow yours. It’s important to make sure you understand the specific advertising and consumer protection laws surrounding disclosures for paid promotions you will want to make sure any promoters follow and include disclosure requirements related to providing discounts or free products in exchange for social media posts. 

We also recommend having a contract with any promoters that outlines your terms and conditions surrounding their ability to promote your product or service. For example, you will want to have terms surrounding your ability to approve or ask for content to be taken down if it violates your terms and making sure the language they use is not discriminatory or inflammatory, etc. Read our free resource for more legal considerations on social media marketing here >>

4. Review the laws around sweepstakes, giveaways, and contests, and make sure you’re compliant and legally authorized to host the contest you want to!

Social media and web contests are very popular, and for good reason, as they can engage your audience and get people excited about a product, service, or company. But it’s important to be aware that contests, giveaways, sweepstakes and lotteries are heavily regulated, and may be subject to local, state, and federal laws. Our free resource on Giveaways & Contests offers a few examples of considerations to be aware of before you host one. Each state has its own laws around these as well, so it’s highly recommended to work with an attorney to make sure you’re following the appropriate procedures, disclosure and disclaimer requirements, and to help you determine if there are any legal barriers, registration requirements or prohibited types of giveaways (such as an illegal lottery).  Read More in our Resource Here >> 

5. Make Sure You’re Authorized To Use The Content You’re Using

The internet makes it very easy to find “free” photos, art, graphics, and other content to use, but many do not realize that the content they are using may be protected under intellectual property laws. As a result, too many businesses unknowingly put themselves at risk of fighting off an infringement claim and having to deal with the legal and financial fallout. Our free resource “Key Considerations for Using Content in the Marketing and Promotion of Your Business” provides key intellectual property insight in online marketing. 

Also, check out our blog post about copyright and AI tools if you’re utilizing artificial intelligence in preparing your advertising and posts. 

6. Confirm your email marketing is compliant with federal and state laws

Email marketing is extremely popular among small businesses because it is a cost-effective way to reach a large number of customers. However, what many don’t realize is that email marketing is regulated by the Federal Trade Commission through the CAN-SPAM Act, which lays out what businesses can and can’t do when emailing people by requiring all commercial emails to contain certain information. There are also state laws which may heighten these standards as well, surrounding unsubscribe options, and specifics for different industries. Read our blog about this for more >>

As always, your location/state, industry, who you’re advertising to (for example, children have a heightened standard and additional requirements), how you’re publishing, and so much more is very content- and business-specific. Be sure to speak with an attorney about your potential promotions and advertising to better comply and understand your legal responsibilities and obligations.

DISCLAIMER: This blog post is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation and considerations with an attorney.