Ambiguity poses risks

Gavel to Gavel

published in The Journal Record | October 15, 2015

Made in the USA

By Jessica John Bowman

As a business owner, you’ve probably put together a team of skilled individuals to help effectively market your products and services by developing memorable and informative product labels, advertisements, and marketing materials. Does that team include someone who can identify the legal risks associated with your marketing campaign? If not, it’s time to add some new players.

Numerous businesses incorporate seemingly innocuous, commonly used claims, such as “all-natural” and “Made in the USA,” in their marketing campaigns. In recent years, many companies that have relied upon such representations have been forced to defend themselves from allegations of false advertising.

Often, the companies using these terms don’t intend to deceive their customers. Instead, the company understands the claim to mean one thing, while the customer understands it to mean something else. For example, a company that doesn’t use artificial flavors or colorings in its product might consider it to be “all natural,” but a consumer might disagree if it includes genetically modified ingredients. Likewise, a company that assembles its product in the United States might mistakenly believe its product to be “made” in the United States, but the consumer (and the Federal Trade Commission) will likely disagree if the product contains foreign parts. The result of using these and other easily misconstrued claims is often customer confusion, and, in some cases, litigation.

Although some companies have managed to successfully defend their use of these claims, they have still been obligated to expend valuable resources defending their use of ambiguous or commonly misused marketing terms. Those resources could have been preserved by analyzing the risks associated with the claims made in their marketing materials prior to using those materials. The best way to limit your risk of becoming the target of a false-advertising lawsuit is to perform a risk analysis before greenlighting a new marketing campaign. Have someone familiar with recent trends in false-advertising litigation review both your product and the claims you make regarding your product – whether those claims are made on the product packaging, in your advertisements, or on your website, and/or social media platforms – to determine which claims, if any, could be misconstrued by consumers. In most cases, any ambiguities can be cleared up quickly and inexpensively by either removing the ambiguous claim or by providing additional information.

This article appeared in the October 15, 2015, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.