How to Advertise

How to Advertise

By Kenneth Roman and Jane Maas

Chapter 15: Truth and Ethics

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.

ADVERTISING AND THE LAW

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.

1.Tell the truth, show the truth. 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.

2.Make the general impression truthful. 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.”

3. Ban “weasels” and dangling comparisons. “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.

4.Substantiate product claims. 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.

5.Back testimonials with research. 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.

ADVERTISING AND RESPONSIBILITY

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.

Privacy

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.

Telemarketing

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.

Tobacco

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.

Advertising to Children

“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.

Marketing to Children Online

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.

Political Advertising

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.

Advertising Review Boards

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.

Public Service Advertising

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.

What Is the Reading or Viewer Being Asked to Do?

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.

What Are the Objectives and Strategy?

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.”

How Will It Be Measured?

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.

REGULATION AND RESPONSIBILITY

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.

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We are grateful to Kenneth Roman for granting aef.com permission to post this excerpt.

Kenneth Roman and Jane Maas, aef

Copyright © 2003 Kenneth Roman and Jane Maas. All rights reserved.