Here’s an early look at a new column appearing in the pages of Marketing. Erin O’Toole’s Rules of Engagement is a briefing and commentary on legal and strategy issues that affect the marketing and media industries.
New ruling means you should start talking to the baseline, and stay there
It can often be forgotten, in the rush to capture the hearts and minds of consumers, that avoiding the pitfalls and risks associated with modern advertising will help grow market share and build or maintain brand equity just as well as any new TV spot or social media campaign. At worst, litigation, regulatory intervention or a recall can undermine brand equity that often took years to build.
So, how fortunate for a nervous lawyer writing his first column for Canada’s creative marketing class that the Supreme Court of Canada came out with a significant decision on advertising law mere days before my deadline. In what has become known as the Time magazine decision, the Supreme Court, in a brisk (121-page) decision, confirmed what many brand managers and agency veterans have suspected for years—namely that the average consumer is naïve and lazy.
Okay, that is not exactly what the court said. In reference to the Quebec Consumer Protection Act, they described modern consumers as “credulous and inexperienced” and warned that they take no more than ordinary care to observe “that which is staring them in the face.” Whether from Ed McMahon years ago or in this case with Time magazine, we are all familiar with the format of direct-mail marketing executions promising recipients the chance of winning a huge prize.
In 1999, Jean-Marc Richard received an “Official Sweepstakes Notification” from what he believed to be Time informing him of a large cash prize. Believing he had won the prize referenced in the bold headline, Richard returned the reply card and subscribed to the magazine. While it was noted (in smaller print) in the letter that the prize was conditional upon Richard having the winning entry, he claimed to have the impression that he would receive the prize. Ultimately, the court accepted this belief and awarded Richard $16,000 in damages.
The Time magazine case serves to reinforce the legal framework for assessing false and misleading advertising, while also expanding upon the expectations on advertisers—and by extension their agencies. First, the court confirmed that advertisers in Quebec will be judged by the general impression created by the entire context of the advertisement, not just the specific text or claims involved. Second, and perhaps the most important element of the decision, the court concluded that the general impression must be analyzed objectively “without considering the personal attributes of the consumer” and from the perspective of the “average consumer” who is best described as “credulous and inexperienced.” So, even if your target market includes highly educated and discriminating consumers, you must assess advertising with the naïve and inexperienced in mind. The third critical point to take from this decision is that fine print disclaimers are not going to remedy misleading general impressions.
The court indicated that it will assess the general impression of an advertisement first and then determine whether the general impression is true to reality. For example, if a court determined that a credulous and inexperienced balding guy like me was given the impression that a scalp treatment product would regrow hair, the advertiser would be required to prove this was true through evidence. If the general impression could not be adequately supported, the advertising could be considered misleading.
So what should marketers learn from the Time magazine decision? First, keep the credulous and inexperienced consumer in mind, particularly if the message being communicated is complex. Simple and clear messages are often best anyway. Second, do not seek comfort through the use of a legal disclaimer to correct a general impression created by your headline and imagery. Consider the use of subheadings, as opposed to far-removed disclaimers to clear ambiguity. Finally, remember that a creative team can often become myopic when working on a campaign for a long period of time. Multiple revisions to a storyboard will likely create a radically different general impression than originally intended. Using consumer research or focus groups to assess general impression may be pricey, but should be considered for high-cost brand identity campaigns.
While this column is more opinion than advertising, by reading to the end of the column you are indeed a winner! Thoughtful consideration of these issues as part of the creative process should help your team produce impactful and robust advertising without all the risks.
How to speak truthfully (and still influence people)
• Keep the inexperienced consumer in mind, particularly if the message is complex. Simple and clear messages are often best.
• Forget using legal disclaimers to correct a general impression created by your headline and imagery. Use subheadings to clarify context.
• Multiple revisions to a message can create radically different impressions. Use consumer research or focus groups for high-cost brand identity campaigns.
Erin O’Toole is a lawyer with the national firm of Heenan Blaikie LLP. This column is not legal advice nor a substitute for legal counsel.
