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There are things we do in advertising because
they are the law, and things we do because they are right.
What is truthful is clearly determined by the law. What is
right is a matter of corporate conscience - an extralegal
responsibility to be taken just as seriously as legal ones.
The erosion of public confidence in institutions
and public figures can only make consumers more suspect of
advertising, which has long been questioned as to its veracity
and responsibility. There will always be misleading advertising
that manages to slip through the legal and regulatory screens.
Yet people are surprised to learn of the essential truthfulness
of advertising and the policies that keep it that way. They
are amazed when told, for example, that consumer testimonials
must reflect what is true-not just what people think or are
willing to say on camera (for money).
Perhaps the real surprise is that, with the
continuing exposure of fresh scandals in the business world,
advertising has managed to police itself and be policed to
become a responsible marketing force.
Much of the federal legislation that regulates advertising
started when the Federal Trade Commission was created by Congress
in 1914 to deal with "deceptive and unfair acts and practices
in commerce."
The FTC isn't the only agency that polices advertising, and
that isn't all they do. They have Telemarketing Sales Rules
(including a proposed new rule to create a one stop "do
not call" list), and continue to monitor "spam".
More than 30 statutes allow others to scrutinize advertising,
including:
- The Food and Drug Administration for foods, drugs, and
cosmetics.
- The U.S. Postal Service for mailed advertising materials.
- The Federal Communications Commission for radio and television
advertising.
- The Securities and Exchange Commission for stock and bond
advertising.
- The Electronic Communications Privacy Act protecting personal
data on the internet.
- The Children's Online Privacy Protection Act (COPPA) placing
parents in control of what information is collected from
their children online. The FTC has enabled members of online
marketing and telemarketing industry groups to provide "safe
harbors" by creating self-regulatory rules -which must
be approved by the FTC.
States get into the act as well. The National Association
of Attorneys General has become increasingly active. Ignorance
of the law is no excuse, as we have learned. There are clear
legal principles for advertising, and it pays to know them.
If the desert melts under the hot camera lights, too bad.
You can't tamper with it or make it firmer. If the dog won't
eat the dog food, that's your problem. Under no conditions
can you doctor it with bacon to get the dog to eat. Campbell
Soup and its agency paid a price for adding marbles to the
soup so viewers could see the vegetables. Your product must
be shown exactly as the consumer buys it-in all material
respects.
You cannot have a product specially selected or constructed
for the use in advertising. Take it right off the production
line. This is particularly true of product demonstrations.
Advertising showed a giant-tired truck flattening every
car in a row but the Volvo. It was later found that the
Volvo's roof had been reinforced and supports of the other
cars weakened.
Although the Volvo was strong enough to hold the truck's
weight, this was seen as misrepresentation of a material
fact. The Federal Trade Commission fined both the advertiser
and agency.
Packages can be cleaned up to be more legible in advertising.
Things that don't impinge on product performance can be touched
up. But the product is inviolate.
Glasses in a beer advertisement cannot be retouched to make
the beer appear lighter or darker. A blemish on the beer drinker's
cheek-not material to the sale of the product- can be retouched.
A blemish on a woman's cheek in a skin care advertisement,
however, is material and cannot be altered.
Avoid strange camera angles or unusual props that make the
product look other than it is, such as a smaller-than-normal
cereal bowl to make a portion look larger.
Advertising is judged not by what it says, but by what the
consumer thinks it says.
A food product together with an eight-ounce glass of milk
is a nutritionally balanced meal. If the consumer thinks
the product is complete by itself-even if the milk is mentioned
or shown-the advertising is deceptive.
If research indicates consumers are getting the wrong impression,
correct it. Otherwise the FTC can rule that the advertising
is deliberately intended to deceive.
Disclaimers need not be dull.
A commercial for a Roy Rogers promotion depicts a concerned
father asking his prospective son-in-law how the couple
plans to eat. On learning the answer, "Bacon cheeseburgers
from Roy's," the father remarks, "Surely, you
don't plan to eat bacon cheeseburgers the rest of your life?""Relax.
No sweat," the young man replies. "It's a limited-time
offer."
"This printer can give you the fastest
copies you've ever seen." The weasel is "can,"
which the consumer is likely to miss.
"This printer will give you faster copies." That's
a dangling comparison. Faster than what? Faster than the printer
used to, or faster than the competition? Make it clear.
There
are subjective claims about a product that cannot be substantiated-beautiful
hair color, a smooth ride, "fried chicken like Mother
used to make."
Then there are objective or competitive claims-longer lasting
than other hair colorings, a smoother ride than any full-size
sedan. For these, you must have high-quality research or evidence
the claim is true, and you must be able to prove that a majority
of consumers agree.
Several consumers may be convinced that your product
does things better than anything on the market and may be
willing to say so on television. That's not enough.
- You need evidence that the product will in fact do what
the people say it will do.
- These people must represent a majority of consumers, not
an aberrational few.
- They must have come to these views before "consideration"
(money) was involved or before they knew there was a possibility
of being paid.
If celebrities are identified as using a product, they must
have been using it before being approached (and be able to
prove it) and must continue to use it as long as the campaign
runs.
Who Is Responsible?
The advertiser and the agency are separately and equally responsible
for advertising presented to the consumer.
Separately and equally.
The advertiser cannot take on the entire responsibility and
absolve the agency of liability. Each is considered especially
knowledgeable in areas of its own expertise. The advertiser
is responsible for providing accurate product information,
which the agency (without its own technical research facility)
can accept. The agency, on its part, is responsible for truthful
photography of the product, accurate documentation of demonstrations,
and substantiation of testimonials.
Both agency and advertiser should be represented at preproduction
meetings and on the set when a question might arise. Don't
take anything for granted.
The first responsibility is to protect the consumer, by telling
people what they need to know in order to make an informed
choice.
Information about products and services, with some sensible
limits, is clearly in the public interest-ingredient disclosures
on proprietary medicines and nutritional information on food
products, for example. The place to start is on the package
itself, with clear and informative labeling.
Responsibility draws us into new areas like privacy and telemarketing
as well as longstanding concerns about tobacco, advertising
to children, and political advertising.
The use of what people consider private information is of
growing concern to consumer advocates, legislators, and the
media. The growth of the internet has added to this concern
and pressure for legislation.
A pharmaceutical company agreed to settle federal charges
that it violated its own privacy policies when it inadvertently
released the e-mail addresses of hundred of people taking
one of their products.
The company was required to improve its on-line security,
including better training for employees. The Federal Trade
Commission had charged that the company's failed to back
them up with the appropriate security.
The key quote from the FTC's director of consumer protection:
"Even the unintentional release of sensitive medical
information is a serious breach of consumer's trust. Companies
that obtain sensitive information in exchange for a promise
to keep it confidential must take appropriate steps to ensure
the security of that information."
The privacy debate grows with the ever-increasing availability
of consumer data and the ability to manage information. Detailed
user profiles are being created by tracking web sites visited,
advertisements viewed, and purchases made-gathered through
Internet technologies such as "cookies" and more
recently, "web bugs." The issue is whether people
are being informed and consent to the use of their names for
certain purposes.
The general rule is that you cannot ask for information about
an individual. You ask for lists of people who have similar
characteristics in common-gender, income, type of residence,
or buying habits.
"Databases of people's spending habits," observes
The New York Times, "are simply too attractive a marketing
tool." Many products and services would not exist without
the free flow of personal consumer data. Where do we draw
the line between these needs and the need to protect consumer
privacy?
American Express collects information to enroll customers,
to provide the services they have selected, to administer
their accounts, and to offer them additional or related products
or services. It also obtains information from other companies
and public sources to identify customers who might be interested
in specific products or services.
The company strongly advocates the protection of product information,
and has long operated with published Privacy Principles:
1. We collect only customer information that is needed,
and we tell customers how we use it.
2. We give customers choices about how their data will be
used.
3. We insure information quality
4. We use information security safeguards.
5. We limit the release of customer information.
6. We are responsive to customers' requests for explanations.
7. We extend these privacy principles to our business relationships.
8. We hold employees responsible for our privacy principles
The policy puts teeth in the last point:
"Employees who violate these Principles or other company
policies and practices are subject to disciplinary action,
up to and including dismissal. Employees are expected to report
violations-and may do so confidentially-to their managers,
to their business unit's compliance officer, or to the Office
of the Ombudsperson."
Marketers must accept the principle of "informed consent."
Consumers must know what information about them is on file
and how it may be used, so they know they have the right to
"opt out."
Raise your consciousness on this issue.
You don't like being interrupted at dinner by a sales pitch?
Really? As telemarketing and other forms of advertising by
telecommunications mushroomed in the 90s, a variety of federal
and state statutes were adopted, aimed at regulating the use
and misuse of these media.
Congress and more than 40 states limit the use of automatic
dialing-announcement devices (ADADs) capable of making up
to 1,500 telephone calls per day without an operator. The
U.S. Federal Trade Commission plans to create a national "Do
not call" registry, making it illegal for telemarketers
to call anyone on that list.
This product category is under intense regulation throughout
the world. Tobacco cannot be advertised on broadcast media
in the U.S., and print is heavily regulated as well. There
are other product categories like prescription drugs and alcoholic
beverages that have legal requirements on how and where they
can be advertised. Check the rules of your product category
and make sure your advertising complies.
"Parents must educate children to become responsible
and informed consumers," says the American Academy of
Pediatrics. Advertisers must be careful not to abuse or exploit
this audience. It is especially important not to distort a
product's appearance or performance, not to suggest making
friends is a reason to use a product, and not to encourage
eating habits that could interfere with good nutrition.
As more and more parents spend more time producing income
and less time tending their children, the burden of responsibility
falls increasingly on the advertiser. There have always been
those who worry about media influences on children, from comic
books to movies. Now there is increasing pressure to restrict
or regulate advertising to children, both in the U.S. and
in Europe. Some critics claim young children are too naïve
to distinguish between advertising and programming. Others
feel food marketing contributes to childhood obesity. Marketing
in schools is a new concern, with cable networks offering
free TVs with news program-and commercials.
Advertisers claim that bans would lead to worse programming
on television, fewer educational resources in schools, and
higher prices for toys. Both sides are missing the point,
claims The Economist-"…parents and teachers have
a responsibility to teach children about the realities of
a commercial world, just as they teach them how to cross a
road safely."
Nevertheless, children are a special audience, and TV is
a pervasive medium among those under ten. It is important
not to distort a product's appearance or performance, and
not to encourage eating habits that could interfere with good
nutrition. Advertising to children can be effective and must
be socially responsible.
The old cliché that most parents learn to use computers
and the internet from their kids was born of the idea that
today's kids are as comfortable on-line as the baby boomers
were with television. It's their medium. From downloading
music to editing their own movies, kids seem to have a facility
with interactive formats, and they take for granted the incredible
resources that digital technologies provide.
Guidelines from the FTC and the Children's
Advertising Review Unit (CARU) call for clear separation
of programming from advertising, a requirement that is becoming
increasingly difficult in an internet world. Kids are online
and marketers know that-just as they know that television
is a place to find kids.
But there is a huge difference between these two media. As
a two-way medium, the web can be abused in ways that are simply
impossible on television. Unscrupulous marketers can find
ways to collect personal information from children, including
their name and address, which in the wrong hands can have
devastating effect, from fraud to pedophilia.
That's why the Federal Trade Commission developed COPPA, the
Children's Online Privacy Protection Act , which went into effect
in April 2000. Among other things, the law now stipulates that web sites
must get permission from parents before collecting, using, or disclosing
personal information from children under 13.
There are few more emotionally charged subjects than this
one. Some groups want to ban it entirely, others point to
fundamental First Amendment issues. As currently practiced,
with so many negative messages and often so little credibility,
it casts all advertising in a bad light.
Government officials must use contemporary media to communicate
and lead, as well as to get elected, and orations are no longer
the way to reach a mass audience. Since we're stuck with some
form of political advertising, it is reasonable to insist
that it be both fair and true. There is a fine line between
regulation and censorship of free speech, but it is around
this issue that the debate should be engaged. Unlike product
advertising, where the consumer just doesn't buy again if
dissatisfied, political advertising leaves voters with a choice
that affects their lives over the longer term.
It is tempting for marketing people to get swept up in their
enthusiasm and miss some their responsibilities. That's why
some companies have set up advertising review boards to make
sure they live up to the highest standards of law and responsibility.
The purpose of these boards is to ensure that all marketing
and communications programs are truthful, clear, and in good
taste, and to guard against consumer misrepresentation. They
also act as an internal audit to substantiate advertising
claims.
It is particularly important to set up standards for media,
such as which television programs or magazines meet corporate
standards. Special-interest pressure groups are prone to use
threats of boycotts to influence media selections-to ban magazines
like Playboy or Hustler or programs like Sex in the City-to
meet their personal standards.
It's one thing for a company to decide it doesn't want to
use these magazines or programs, but that's the company's
decision to make. Without standards established in advance,
advertisers can be whipsawed to follow someone else's standards.
One of the great contributions of the advertising community
is the use of its talents to support community or social causes.
Agencies donate their time and talent, various media donate
time or space, TV and print production companies donate their
capabilities, clients pay for out-of-pocket costs for production
(usually without any markup).
Most public service announcements (PSAs) have been channeled
through the Advertising Council, an association of advertisers,
agencies, and media that takes on such causes as fighting
drunk driving, community crime, and pollution.
A campaign to increase public involvement in championing
art education in schools started with the headline: "No
wonder people think Louis Armstrong [shown with his trumpet]
was the first man to walk on the moon."
The ad concludes, "The less art kids get, the more
it shows."
Some of the Ad Council's other current concerns are:
Domestic violence-"End Abuse. Teach early."
Colon Cancer Detection and Prevention- "Get the test.
Get the polyp. Get the cure."
The September 11 attack on the World Trade Center led to
advertising to raise funds for the families of victims, firemen,
and policeman lost in that tragedy, plus a campaign to encourage
visitors to return to New York City.
The New York campaign launched with Mayor Rudy Giuliani
setting up the theme "Experience the New York Dream!"
The following commercials showed celebrities "experiencing"
their New York Dream-Woody Allen figure skating at Rockefeller
Center, Yogi Berra conducting the New York Philharmonic,
Barbara Walters auditioning for a singer role, Henry Kissinger
sliding into home plate at Yankee Stadium, Billy Crystal
and Robert DeNiro riding a float in Macy's Thanksgiving
Day Parade.
To make a difference, public service advertising must be
just as disciplined and professional as commercial advertising.
Broadcasters and publishers are bombarded by organizations
asking for free time and space. The Ad Council alone sponsors
39 programs, and there are many other national and local individual
efforts.
Getting public service advertising on air or in print is
a huge challenge. Agencies love to create commercials or print
ads that touch emotions for good causes. Boards of directors
cheer. Then the advertising appears a few times in odd hours.
Lots of time and money expended, with no lasting impact. Since
media can't run everything, they will choose advertising they
want to run.
The commercial starts with blind musician Stevie Wonder
playing the harmonica and saying, "I can't say no."
Other celebrities follow, citing frivolous things they can
not do-Harrison Ford ("I can't do math.").
It closes with Christopher Reeve in his wheelchair: "It
doesn't matter who you are, there are things you can't do
and things you can. It's about ability, not disability."
Then the logo of The National Organization on Disability
(N.O.D.)
Specialist placement agency WestGlen offers these tips for
a successful PSA.
- The message must serve the public-but make the subject
matter interesting.
- Make sure the message is relevant to the station or viewing
area-localize spots whenever possible.
- Provide multiple commercial lengths-and send each station
its preferred length. The most acceptable is :30, followed
by :60 and :15.
Radio PSA's can zero in on specific demographics, and spots
can be localized for specific markets by recording local tags
or providing local information for live delivery.
It's easier to get cleared on radio, says WestGlen, but TV
offers more staying power. Radio moves spots in and out quickly,
on average one to three months. A spot on TV can run on average
three months, with many stations keeping it on for six months
or longer.
There should always be some call to action-vote, put out campfires,
contribute time or money-and a web site or 800 number to call.
The N.O.D. commercial asked viewers to visit its web site
at www.nod.org.
For public service or any other advertising, the most effective
campaigns have one message and one image that they stay with
year after year after year.
The Partnership for Drug-Free America was set up to take
on a single large social problem with a series of campaigns
on the many faces of drug abuse. Recent commercials used Olympic
athletes like 19-year-old U.S. Gold Medalist Apolo Ohno:
"Am I a speed skater? Yes. Did I skate my way to a
World Cup victory? Yes. Could I have skated this far if
I'd ever done drugs? Pleassse."
It's hard to get accurate numbers of how many times the advertising
ran or how many people saw it. An Advertising Council Study
with the Advertising Research Foundation found that TV commercials
persuaded double the number of men to get screening tests
for colon cancer, which increased the survival rate from 50
to over 90 percent. But few public service campaigns run long
enough to make other than a short-term difference.
The reality is that a lot of public service announcements
are run without much evidence of their effectiveness. They
run on faith, for the benefit of good causes.
Advertising is powerful medium. It comes into our homes and
our homes and our-lives, it reflects values, and it attracts
attention. While its purpose is to sell, it must also have
a sense of social responsibility. It can have a corrosive
effect on social values if not handled carefully. Advertising
does not exist in a vacuum nor can it be amoral.
For all these reasons, advertising is a highly visible target.
Its excesses of bad taste (use of sexuality, questionable
stereotypes, loud appeals) have been criticized, often with
justification. Threats of regulation often follow criticism.
Advertising must be regulated by someone, and that someone
is the advertising business, which must regulate itself-following
the letter and the spirit of the law. Advertisers need to
be responsible in advertising and product labeling. Agencies
must insist that clients substantiate product claims. Broadcasters,
publishers, and educators should be part of the process.
At stake are free speech and information and the right of
consumers to choose rather than having choices made for them.
Tell the truth, the whole truth, and nothing but the truth.
And, remember, brands are built on trust.
Kenneth Roman and Jane Maas, aef
Copyright © 2003 Kenneth Roman and Jane Maas. All rights reserved.
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