Orange County False Advertising Attorney

The attorneys at The Kinder Law Group have vast experience in guiding and counseling on local and national marketing and advertising efforts. Our attorneys can guide you through the maze of common law, state and federal advertising regulations that impact your marketing strategies. Through diligent counseling, the attorneys at TKLG assist clients in avoiding false or unfair advertising allegations, navigating the laws pertaining to sweepstakes and contest promotions, and understanding the legal requirements behind fax, email and telemarketing communications. We regularly assist clients with the preparation of model releases, athlete agreements, and endorsement contracts. Through regular and proactive counseling, our professionals help clients to avoid needless infringement and false advertising and false endorsement claims as they grow their businesses.

When litigation does arise, however, the attorneys at TKLG are adept at handling false advertising matters, including litigation in federal and state courts as well as advertising challenges before administrative agencies such as the National Advertising Review Counsel (NARC) and the National Advertising Division of the Council of Better Business Bureaus (NAD). By utilizing our relationships with a network of experts, our attorneys can guide cases through to prompt resolution by the application of scientific testing and statistical analysis in an effort to evaluate claim substantiation.

The Kinder Law Group offers a number of additional litigation services to our clients, including representation for both trademark infringement and trade secret misappropriation.

How Is False Advertising Defined?

To successfully avoid claims of false advertising or defend against them when they arise, it is beneficial for Irvine businesses to have a strong understanding of what the claim involves. So, how is false advertising generally defined?

When an entity has engaged in false advertising, they willingly published, transmitted, or publicly circulated an advertisement that contained claims that are either misleading, false, or generally deceptive to consumers. Instances of false advertising can be either intentional or inadvertent. For example, the false claims could have been made as an intentional attempt by a business to mislead consumers, or they can be the result of recklessness on the part of the business entity. Depending on intent and severity, false advertising can be considered a crime or business misconduct.

Accusations of false advertising are serious—after such an accusation, your business is at risk whether you intended to engage in misleading practices or not. As a result, if you opt to promote your company’s goods, property, or services to a public audience, it is essential to remain aware of false advertising. Avoiding misleading advertising practices is the responsibility of every business.

It is also important for businesses to fight against these damaging claims when they do occur. Not only does false advertising damage the reputation of a business, but a legitimate claim typically results in hefty fines your company may not be capable of paying. Smaller companies are especially at risk of becoming bankrupt should they receive false advertising claims from consumers.

Federal False Advertising Regulations

False advertising is regulated at both the federal and state levels, and enforcement varies depending on the circumstance.

Federally, instances of false advertising are regulated by the Federal Trade Commission (FTC). The FTC is responsible for enforcing the United States’ unlawful advertising laws after they are passed by Congress. Further, the FTC has the capability to propose regulations itself, with the ultimate goal of influencing Congressional law. The public has the right to comment on any of these regulations as they are proposed. Federal Truth in Advertising laws are diligently enforced by the FTC, and all businesses in the United States are subject to the rules, regulations, and penalties set by these laws.

However, some regulations relating to false or deceptive advertising are specific to certain industries. For instance, both the tobacco and alcohol industries are subject to unique advertising regulations that do not necessarily impact the advertising practices of companies in other industries. Nutritional supplements are another form of product that faces industry-specific regulations regarding false advertising.

Although federal regulations can become complicated, no individual or business should ever remain uncertain about what they entail, whether they are industry-specific or general. In fact, there is no excuse to claim ignorance regarding FTC regulations because it is possible to find complete details—published for the benefit of the public—on the FTC’s own website.

State Regulations Regarding False Advertising

In addition, states also possess the right to establish and modify laws relating to false or deceptive advertising. On the state level, these laws are typically set and enforced by either:

• A consumer protection agency
• The state attorney general’s office
• A local district or prosecuting attorney

California has set some of the strictest consumer protection laws in the country, including regulations regarding false advertising. Both criminal and civil liabilities exist for businesses violating California Business and Professions Code 17500, which prohibits a business from making a misleading claim to influence buyers to purchase a product or service. It is important to note that in California, the business must be aware the claim is false or have failed to exhibit reasonable care to prevent false claims.

In California, a business can be held liable for false advertising by participating in many misleading practices, including:

• Omitting key information
• Misrepresenting key information
• Charging hidden fees
• Unfairly comparing the product or service to others
• Substituting a poor product or service for the superior one that was advertised (bait and switch)

How Can a California Business Best Avoid False Advertising Claims?

While it is impossible to avoid unfounded claims of false advertising altogether, there are some key precautions businesses can take to prevent inadvertent instances of false advertising. Consider the following steps to minimize your risk of a false advertising claim:

1. Carefully Monitor Your Headlines Publishing a headline that is untrue or misleading to consumers is one of the quickest ways to find yourself impacted by a false advertising claim. Even inflating positive results to depict the exception to the rule rather than the average consumer experience can be interpreted as false advertising. For example, if your company produces a diet product, you must avoid promises of immediate results since that is not the experience of the majority of consumers.

   Since it is possible to unintentionally make dishonest or misleading claims in a headline, careful attention is necessary to minimize your risk of false advertising accusations. When beginning a new campaign, review potential headlines with an effort to put yourself in the head of the customer. Read and interpret the headline from their perspective, which may not necessarily be the same as how you were hoping the headline would be interpreted by its audience. What might the average consumer assume about your product or service as they read your headline? Is this assumption true, or is it misleading?

2. Always Set Clear Expectations Of course, advertising is about promoting your product or service and setting high expectations for its performance. However, never leave information open to interpretation. When you leave partial information for the customer to interpret, their assumptions may prove misleading.

   Dietary supplements are a strong example of when this rule is especially relevant. If you produce supplements, it would be logical to use examples of consumer results in your advertising to display what the product could do to benefit the user’s health and wellness. However, if you choose to display only extraordinary results and allow consumers to assume those results are to be expected with every use, you have set unfair expectations. Instead, display the full range of potential results so consumers know what they might expect.

3. Include Disclaimers in Your Advertisements Disclaimers are one of the most significant safety nets available to businesses and marketers. Some of the above-mentioned examples would be acceptable if a disclaimer was also included, while those same claims could result in a false advertising accusation if the disclaimer was left out.

   For example, businesses in the lending industry often employ advertising campaign claims that they can “finance anyone” or that they offer “instant approval.” Without a disclaimer, it is easy to see how these claims could be misleading. Including a disclaimer that lists potential reasons an applicant could be denied serves to inform the consumer and sets realistic expectations.

   Another strategy is to make any product or service claims a bit less all-encompassing. Instead of “instant approval,” promote the fact that “approval typically occurs within just a few seconds.” This claim offers the truth without making false promises and could afford your business additional protection.

   No matter your strategy, avoid releasing disclaimers to the public without first consulting with a professional. Instead, work with a marketer to draft the best possible disclaimer for your advertising campaign. Then, refer to an intellectual property and litigation attorney to ensure your disclaimer is satisfactory.

The Kinder Law Group Defends Against False Advertising Claims

Accusations of false or deceptive advertising are a quick route to a PR nightmare. Not only will you risk your business’s reputation, but it is possible you will be faced with hefty fines or even criminal penalties. If you operate a business or enterprise of any sort, the fines you risk receiving for false advertising can be crippling.

At The Kinder Law Group, our skilled attorneys can not only advise businesses regarding how to avoid false advertising claims, but we can also defend against these serious accusations. If you own a California business, now is the time to reassess your advertising efforts and protect your bottom line. Contact The Kinder Law Group online to request a professional consultation or additional information.