Advertising can expose businesses to legal repercussions

Be careful what you say when you advertise; someone may be watching.

That someone may be state attorneys general, the Federal Trade Commission or a competing business, warned Blackwell Sanders Peper Martin partner Robert Lewis.

Lewis, chair of the advertising and marketing law practice at the firm's St. Louis office, presented an advertising and marketing seminar for 65 Springfield professionals Feb. 19 at The Tower Club.

Lewis' words of wisdom: "Make sure that you're honest and not deceptive. Be careful in how you're presenting your products and services to the consuming public. And be particularly mindful of children."

He said ads targeting children are among the hot areas for lawsuits right now. Also big are suits against marketing of tobacco, guns and fast food.

"(Fast food) is going to get a lot of attention this year," he said.

The allegations against McDonald's say that the company encouraged overeating in children to improve its bottom line.

The Food & Drug Administration is in the process of looking into it, he said.

Lewis said there have been no landmark cases for advertising in Missouri. "The (attorney general) in Missouri is not very active on advertising issues," he said.

Some things to watch for:

stating that goods are original or new when they are not;

stating that goods are of certain quality;

comparative advertising using "better than" statements;

bait and switch ads; and

false or misleading statements.

Lewis said the liable parties include the advertiser and the ad agency, but the Federal Trade Commission is considering holding media outlets responsible, too.

"So far the media has not been held liable for running ads," he said, but that could change.

The consequences of false ads include permanent injunction against a specific ad; awards of damages, profits or attorney fees; settlement expenses; termination of licenses; adverse publicity; corrective advertising; and criminal charges, he said.

While advertising fraud can be costly Lewis has seen suits in the multimillion-dollar range Lewis said the bigger impact might be from a damaged public reputation.

"The big deal to me is when you get adverse publicity and it hurts your brand," he said, especially when businesses have to perform corrective advertising.

Lewis advises hiring an attorney to review ads, especially when copyright and trademark laws are involved.

"Every problem I've encountered, they didn't get a lawyer's advice or they didn't run it by the lawyer," he said.