Ask yourself these questions about advertising:
• Should profit or prudence prevail as surveys indicate women, Hispanic Americans, and African Americans are prime targets for cigarettes and alcohol when most consumers are consuming less of both?
• Should a commercial for a popular pain reliever reveal that the reason
“more hospitals choose our brand” is that it is supplied at a reduced price?
• Should consumers who have no medical background be told to ask physi-cians about specific brands of prescription drugs?
• Should an automobile maker show a sports car outracing a jet plane in an age when speeding motorists are killed daily?
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• Should advertisers cast TV commercials using such imperatives as “she should be blond—or if brunette, not too brunette—and pretty, but not too pretty”; “midwestern in speech, middle-class looking, gentile”; or “if we’re using blacks, make them upscale”?
• Is even a mock representation of violence and domination appropriate in commercial speech?
• What about sexual innuendo? If sex sells, should there be limits?
Advertisers can go too far in their attempts to be creative. In some cases, consumers become so outraged they start a boycott. The media may choose not to run an ad they find offensive, as Elle magazine did when it ran a blank page instead of running a Benetton ad that showed a man dying of AIDS.
And sometimes the ad goes so far that it breaks the law and results in sub-stantial penalties.
Regulations
Here are regulations you should know before you create ads:
• Know the difference between puffery and deception. The legal definition of puffery is “an exaggeration or overstatement expressed in broad, vague, and commendatory language and is distinguishable from misde-scriptions or false representations of specific characteristics of a product and, as such, is not actionable.”11For instance, an ad for spaghetti sauce may claim it’s “as good as mom’s.” Few people would believe this to be a statement of fact. If your mom is a bad cook, you may hope it isn’t true.
• If you make a claim, be prepared to substantiate it. You may be tempted to promote a health benefit or state your product is better than another company’s. Before you do this, be aware that the Federal Trade Commis-sion (FTC), the Food and Drug Administration (FDA), and the National Association of Attorneys General require that you can substantiate your claims. If you can’t, they can order you to do a variety of things, including pulling the ad in question and running corrective advertising.
In 2006, a federal judge ordered tobacco companies to stop using the terms “light,” “ultra light,” “mild,” and “natural” in selling cigarettes, saying they “implicitly or explicitly convey to the smoker that (light and low tar cigarettes) are less hazardous to health than full-flavored ciga-rettes.”12In addition, the judge ordered a year of corrective ads by four tobacco companies.
Competitors can sue if your ad misrepresents the nature, characteris-tics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities. John Deere & Co. stopped MDT
11J. Thomas Russell and W. Ronald Lane, Kleppner’s Advertising Procedure (Upper Saddle River, NJ:
Prentice Hall, 2002), pp. 635–636.
12Wendy Melillo, “Big Tobacco Must Fund Anti-Smoking Ads,” www.mediaweek.com, 21 August 2006.
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Products from using the John Deere logo in a disparaging manner. And Wilkinson Sword was ordered to pay Gillette $953,000 in damages after making deceptive superiority claims.
Pepsi sued Coca-Cola over a Powerade commercial that showed two Amish-looking fellows having a drag race with their horse-drawn carts.
The cart carrying 10 bales of hay beats the cart loaded down with 50 bales and the commercial cuts to a chart that shows total calories for Gatorade (50) and Powerade Option (10). The announcer says, “Ten is less than 50. Powerade Option, the low-calorie sports drink.” Pepsi, which makes Gatorade, protested on the grounds that people need more calories when they work out. Coca-Cola quickly settled out of court and stopped running the ad.
• Don’t copy creative ideas from other campaigns. Regardless of what you may have heard, imitation is not always the sincerest form of flattery.
Nike forced Volkswagen to pull a print ad that used an “Air Jorgen”
headline because it was too close to Nike’s Air Jordan trademark.
• Don’t copy other people’s likeness. Tom Waits won a $2.4-million lawsuit against Frito-Lay and ad agency Tracy Locke after they used someone who sounded like Waits in a radio campaign for Doritos. Vanna White won $400,000 from Samsung after it used a female robot dressed in an evening gown and blond wig, standing in front of a letter board.
• Respect other companies’ trademarks. Tony the Tiger and the Exxon tiger coexisted peacefully for more than 30 years. But when Exxon started using its tiger to sell food, Kellogg’s sued for infringement of its tiger trademark. See Chapter 2 for more information on trademarks and how to protect them.
• Watch what you say in front of children. Advertising that may be suitable for adults may be unacceptable for children. The Children’s Advertising Review Unit (CARU) of the Council of Better Business Bureaus asked Quaker Oats to modify a commercial for Cap’n Crunch’s Peanut Butter Crunch Cereal because it featured the captain throwing a jar of peanut butter overboard as he states, “Who needs it.” CARU’s concern was that children might believe the cereal is nutritionally the same as, if not better than, peanut butter.
CARU asked Kellogg to discontinue an advertising campaign for Apple Jacks cereal because of references to a “bad” apple. The commer-cials in question featured an agile, easygoing cinnamon stick, referred to as CinnaMon, and a short, devious and grouchy apple referred to as Bad Apple. Bad Apple is always scheming, but ultimately fails, to beat Cinna-Mon to the bowl of Apple Jacks. CARU determined children could reason-ably take away the message that apples are bad for them and do not taste good and that cinnamon, by itself, gives Apple Jacks its sweet taste.
And it’s not just ads targeted toward children that are being moni-tored by CARU and other advocacy groups. Ads for adult products, such
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as beer and cigarettes, have come under fire. Joe Camel and the Budweiser frogs were dropped after studies showed they were widely recognized by children. Even a Post Grape Nuts commercial was deemed unfair because a spokesperson compared the “natural good-ness” of Grape Nuts to the wild nuts and berries he picked in the woods.
The message was unacceptable because some nuts and berries found in the wild are poisonous and children might not tell the difference.