Advertising is the act or practice of attracting public notice or attention to prefer a specific product or service. Advertising Law are extant enactments and regulations governing deceptive, misleading or unfair advertising, trademark violations and infringement, unfair competition, and use of endorsements.
In the United States of America, each state have laws prohibiting against false or offensive advertising and the set laws may vary by.
Adverts have gradually become part of human life. Adverts are displayed or broadcasted directly or indirectly on print, electronic and social media. The advent of the social media culminated into a deviation from the traditional advertising on television, magazine, billboards, posters, etc.
The primary purpose of advertising irrespective of mode or medium of broadcast is to convince buyers to purchase a product. Adverts usually contain information which persuades the public to patronize or prefer one product over another.
Adverts comprises of all forms of public announcement intended to abet directly or indirectly in the spread of an idea, or reroute attention to a product, brand, service or entertainment.
It is germane for entrepreneurs, professionals, content producers or owners to be familiar with the extant laws and regulations that govern the ways adverts may or may not be legally advertised.
It also important to engage Attorneys who specialize in advertising law for counsel in case of commercial disputes and ensuring that advert practitioners play by the rules in relation to legality and advert ethics.
Sources of Advertising Law
In the United States of America, generally the Federal Trade Commission (FTC) Act and Lanham Act and the primary Federal Laws governing false advertising. Pursuant to the FTC Act, false advertising comprises of advertisements containing unbelievable representations irrespective of whether or not such representations turn out to be true provided the advertiser have no reasonable grounds to believe it to be true.
The Federal Trade Commission reserves sole powers to enforce the FTC Act. Laws and regulations aim to keep the practice of advertising reasonable, fair and honest. Advertisers are compelled to labels products in a manner that conveys the true intention of the producer or service provider.
Advertising law governs how manufacturers and content producers conducts its public advertising campaigns, and any assertion it may make as to the value and efficiency of its products or service.
The Federal Trade Commission demands that advertising assertions must be “evidence-based.” A false or deceptive is a serious infraction of the law.
The FTC act regulates advertising and marketing schemes or approach transversely on all mediums, as well as online, offline, electronic, print and telemarketing promotions.
Note that the extant advertising law and regulations apply to general product assertions including health promotions as to the effectiveness of a product.
Practicing as an Advertising Lawyer
Pursuing a career as an Attorney in advertising law requires you to work alongside companies, individuals, professionals, content producers, actors, artist, musicians etc. The primary job of an advertising lawyer is to guide and counsel clients to ensure that they comply and operate within the extant advertising law and regulations in conducting their activities and transactions.
Advertising lawyers must have detailed knowledge and understanding of advertising rules and regulations, tough legal research skills to survey and sight new legal issue as they come up.
Advertising lawyers may have to review advertisement, product labels, and assertions as to the effectiveness and value promulgated to the public and they may also suggest adjustments where necessary. Advertising lawyers must have a first-rate understanding of specific assertions may violate the “truthfulness” of a claim which is a basic requirements of the FTC Act and other extant advertising legislation.
An advertising Attorney may also render legal service from the side of enforcement to bring institute civil or criminal proceedings or penalties against erring advertisers infringe advertising laws.
Globally, Advertising Law is an evolving field of law; therefore law students who are desirous of choosing a career in Advertising Law must develop interest and study in the followings course: Intellectual Property, Trademarks, Commercial Law, Administrative Law, Antitrust, Internet Law, Corporate Law and Practice, Civil and Criminal Litigation.
Filing a Complaint against False Advertising Under Lanham Act
Individuals, consumers or competitors who victims of false advertising are at liberty to file a complaint for false advertising under the Lanham Act.
Consumers or competitors who seek to establish an infringement under the Lanham Act are under duty to prove the following:
- The advertiser made false statements of fact about its product;
- The false advertisements in fact deceived or had the capability or competence to deceive a significant part of the aimed population;
- The deception was substantially material;
- The falsely advertised product was sold in interstate commerce; and
- The Plaintiff was adversely affected or injured due to the deception. The injury may be likely injury or actual injury.