Tips for walking the legal tightrope with your marketing

From promotional hyperbole to retouched or ‘found’ photos, perils abound. Follow these guidelines to stay out of court and maintain consumer trust.


Everybody—the FTC, customers, competitors, people on the street—would love to catch your business in a lie.

If they do find something wrong, especially in your marketing materials, it can mean a lawsuit and a major payday for them.

You must keep your work in line, legally speaking, or you risk negative attention, lawsuits, loss of consumer trust and damage to your brand.

Follow these tips to avoid legal hot water:

1. Just don’t lie.

If you get caught lying in your marketing, expect major repercussions. The FTC might fine you, or a wronged customer might sue.

Of course, marketing is more than just conveying truth versus lies; it’s how a marketer presents truth to the audience. What truth is included, and what is left secret? What information is emphasized, and what’s in small print at the bottom?

When making statements, slogans and opinions, make sure you aren’t lying. Even unintentional lies or falsehoods can land you in trouble. It happens to everybody, including huge corporations.

Here are a few examples of slogans and ad statements that have gotten companies sued:

  • Red Bull: The slogan “Red Bull Gives You Wings”
  • Kellogg’s: That Rice Krispies boosted the immune system
  • Kellogg’s: That Mini-Wheats could make you smarter
  • Eclipse Gum: That its gum killed germs
  • Papa John’s: The slogan “Better Ingredients, Better Pizza” prompted a suit by Pizza Hut
  • Listerine: That mouthwash was just as effective as flossing

If you want to convey that your product is superior, saying something like “the No. 1 product on the market” is dangerous. You need proof (No. 1 in sales volume, or top ranking in an independent study). Failing that, offer an opinion: Instead of saying “the No. 1 product,” say, “Our product is the best around.”

It’s not just slogans that can mislead. As you produce content for your company’s blog, writing interesting content can be difficult. It might be tempting to exaggerate or stretch the truth. Be careful, because if you take it too far, you could be on the hook for misleading consumers.

2. Be careful with images.

A major part of marketing is visual. If your marketing isn’t pleasing to the eye, it won’t keep people interested and engaged. Using photos incorrectly, though, can land your business in trouble.

  • Copyrights. Unless you have a professional photographer on staff, it’s likely you’ll be using photos you find online. If you’re using them for marketing purposes, you must obtain the rights. Using a photo you don’t own for business or marketing reasons is a violation of copyright and can get your company sued. Even if you take an existing photo and make significant changes to it, you are still in legal danger. Before you use any image, either in a brochure or on your website, be certain you own the rights to it. You can get free photos through creative commons, but to be safe, buy stock photos.
  • Misleading images. How you make changes to images, especially those used in ads or other representations of your product, could land you in hot water. Consider the ads for Olay’s Definity eye cream featuring Twiggy (then in her 60s) looking wrinkle-free and much younger. Turns out, the photos for the ad had been photoshopped to eliminate all her wrinkles. This misled consumers, and the ad was banned in many countries. Even using unaltered photos that mislead consumers or oversell products or services can lead to trouble.

3. Navigate the murky waters of social media carefully.

Social media laws are still being created and figured out. Businesses share posts from followers and others all the time, post links to content they didn’t create, and engage directly with consumers publicly. As businesses push to become huge on social media, they often forget to watch their backs legally.

Many marketers wrongly assume that businesses can act as individuals do on their personal accounts. A person can share a picture they don’t own with little fear of getting sued; businesses can’t.

Ask permission first.

It’s polite and thoughtful, and it could make somebody’s day. Most important, it could spare you a lawsuit. If somebody denies you permission to use their video, image, quote, review, comment or whatever, just move on.

When it comes to creating content, follow the same rules as above. Don’t lie, make sure you own the rights to what you are creating, and don’t mislead. If you are making a video with music, use music you have the rights for. Including the newest pop song might really spice up the video, but it could also have the artist’s lawyers chasing you down.

4. Be cautious about contests and giveaways

A popular tactic to engage with fans is to hold a contest with fabulous prizes. That can bring legal pitfalls, however. Check local and state laws concerning sweepstakes, giveaways, contests, lotteries, etc.

Make sure the rules are published so people know their chances of winning. Are prizes awarded randomly or based on performance? What information is required to enter? Are there limitations on who can enter, like geographical or age restrictions? Make that information available.

Don’t hesitate to have contest participants sign a form agreeing to the rules. Thanks to digital and electronic signature software, it’s easy to have a legally binding contract to cover your business. Have a qualified lawyer look it over.

5. Keep current on legal changes.

The legal landscape changes continually, so stay up to date. As other companies and corporations get sued, analyze your business and see whether yours is in similar jeopardy. Consult a lawyer to see what risks you run with your marketing efforts. Be proactive about finding and fixing openings for potential lawsuits.

A version of this post first appeared on Marketing Insider Group.

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