More and more we are seeing disclaimers at the foot of websites, on social media pages, in direct mailers, in 15-second TV ads, in videos, and on products.  The savvy marketer understands the importance of affixing disclaimers to their advertising material.  Yet, while they may understand the need for disclaimers, they do not often properly draft them or place them, nor do they truly appreciate the “clear and conspicuous” requirement.

Both federal and state law govern advertising of products and/or services.  In particular, the Federal Trade Commission(FTC) has adopted an reasonable definition for a “clear and conspicuous” disclaimer:

“When written, clear and conspicuous information generally is printed in a type size that a consumer can readily see and understand; that has the same emphasis and degree of contrast with the background as the sales offer; and that is not buried on the back or bottom, or in unrelated information that a person wouldn’t think important enough to read. . . . When disclosures are oral, clear and conspicuous means at an understandable speed and pace and in the same tone and volume as the sales offer.”

The National Advertising Division of The Council of Better Business Bureaus (“NAD”) has adopted a similar approach in determining whether a disclaimer is sufficiently “clear and conspicuous”:

“Factors to be considered in assessing whether material product information is clearly and conspicuously disclosed include: the prominence of the information that needs to be disclosed, its proximity to the underlying claim that it is intended to qualify and (particularly in the case of Internet advertising) the likelihood that consumers will have notice of the existence of this information before making a purchase.”

In order for a disclaimer to really be effective, it must be easily understood.  One way to accomplish that is by using language appropriate to your target market.  For example, if your target market consists of children, then your disclaimer should include more disclosures and appropriate disclaimers than if you were advertising to adults.

What about you, do you have disclaimers?

If so, have they been properly drafted in language that could pass the “clear and conspicuous” test? Have they been properly placed? If not, fix it, before it is too late.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Facebook Fan Page, on my Twitter page, in one of my LinkedIn Groups.

Top FTC Scams of 2016


Stealing Money & Identity.

Traitor ConceptThose who regularly read my blog know how serious I am about warning people about the latest scams and fraud designed to steal your money or identity. Unfortunately, there’s no shortage of unscrupulous people who would not think twice about taking every last penny you have earned, regardless of your age, race or economic status. These people would just as well rip off an 85-year-old widow living on social security as they would a millionaire.

Early this month, the FTC (Federal Trade Commission) released its annual summary of consumer complaints. The numbers are in for 2016.

The top scam of 2016 had to do with debt collection, with 859,090 complaints filed. Even legitimate debt collection agencies have to follow strict guidelines when dealing with consumers. Phony debt collectors can target people for debts they don’t even have, often using heavy-handed tactics, including threats and verbal abuse.

The 2nd most reported scam with 406,578 complaints filed had to do with imposters representing themselves as someone they are not in order to get money, information or access to a person’s home. Often people pose as IRS employees or other government agents. Other crooks pose as utility company workers in order to get into people’s homes.

The 3rd most reported scam involves identity theft, with 399,255 complaints filed. Criminals get hold of the victim’s personal information and use it steal money and/or commit fraud. Thousands of people a year have their bank accounts emptied or fraudulent purchases rung up on their credit or debit cards. Many people have their credit ratings ruined, and even if you can prove fraud, it may still take years to completely recover your good standing.

Of course there are many more scams, to see the complete list for 2016 see here.

Being that it’s tax season again, I must warn you once again against scammers who call or email you claiming to be from the IRS and demanding payment under the threat of penalty or arrest. The IRS does not contact people via phone or email, only via postal mail. So don’t fall for this scam regardless of how official the caller may sound.

Little things you can do to protect yourself from scammers include:

  • Keep your social security number and bank account numbers protected.
  • Make sure that nobody gets hold of your PIN numbers for your debit and credit cards. If you are not sure of an establishment, sign instead of using your PIN #.
  • Ask for proper identification if someone in an “official looking capacity” wants to enter your home. If you are not sure, call the company or agency they claim to represent, or call the police.
  • Stay on top of your banking statements and balances, as well as your credit scores.
  • And, of course, don’t open up emails from sources you don’t know or trust. Malware and spyware can be downloaded to your computer and personal information can be stolen.

Anyone has the potential to fall for a scammer, but you can lower your odds by staying alert and informed about what the criminals are up to. Use good ole fashioned common sense when shopping or dealing with solicitors. Remember that what seems too good to be true usually is, and what smells like a rat is usually just that…. a rat.

Join my conversation on FacebookFacebook Esteemableacts Fan Page, or my Facebook Law Page, you can also interact with me on my Twitter Esteemable Acts page, Twitter Law Page, or on LinkedIn. Feel free to subscribe to my newsletter.

FTC. Testimonials.


FTC. Testimonials.

FTC. Consumer protection. Testimonials.

FTC.  Testimonials.

The Federal Trade Commission (FTC) is the  consumer watchdog that engages in  consumer protection.  In the 1970s, the FTC enacted the Guides Concerning Use of Endorsements and Testimonials in Advertising.  They were first amended in 1980, and then again more recently in 2009. The most recent change came as a result of the explosion of social media and the use of mobile devices.

Recently I listened in on a LinkedIn conversation among marketers. Several of them insisted they did not need to know about the Guides Concerning Use of Endorsements and Testimonials in Advertising, because they were “only bloggers” and someone told them the “FTC didn’t care about bloggers.”  Once again I realized that while the Internet is replete with some valuable information, it is also filled with useless inaccuracies.  So allow me to set the record straight as to who needs to know about the Guides Concerning Use of Endorsements and Testimonials in Advertising.  If you fall into one of the following categories,  you should read and understand the Guides Concerning Use of Endorsements and Testimonials in Advertising:

  1. Both the endorser and advertiser, because if the endorsement is found to be deceptive, they BOTH will be liable
  2. Anyone who advertises to consumers
  3. Anyone who markets using either social media or an affiliate

Here are a few KEY Endorsement Requirements:

  1. Endorser MUST be a real person, not computer generated;
  2. If you use an actor instead of an actual consumer, you must clearly & conspicuously disclose that information;
  3. The endorsement must accurately reflect endorser’s belief and experience at all times throughout the life of the AD campaign;
  4. The endorser must have reasonable basis for the claims they make;
  5. Any claim made where the endorser says they use the product must be true at all times;
  6. Advertiser don’t have to disclose that a celebrity or an expert has been paid to endorse a product UNLESS the existence of the relationship is not reasonably expected.

There is a lot more to know. For more information check out the actual Guides on the FTC website, the Endorsement Guide FAQs, and the Dot.com Disclosures. If you need actual legal advice, instead of just legal information, feel free to contact an attorney admitted to practice in your state, who can counsel you accordingly.

In the meantime, what are your thoughts about the Guides Concerning Use of Endorsements and Testimonials in Advertising? Join my conversation on my law Facebook Fan Page, my law Twitter page, one of my LinkedIn Groups, and in my Google+ Circles.

Trial Offers. Risk Free. Terms of Use.


Terms of Use. Trial Offers. Risk Free.

Terms of Use. Red Reviews.

Terms of Use. Read Reviews.

There are hundreds of commercials on TV and hundreds more all over the internet offering “trial offers” for products that range from skin care to vitamins and supplements. The health and beauty industry is known for these types of trial offers because they want you to feel comfortable trying out their products, so they offer arguably, “risk-free” trials so you can determine if the product is right for you.

But wait…there is always a catch. And, it’s up to you, the consumer, to be aware of the Terms of Use attached to these deals.

Let me start by stating that adults should know that nothing in life is free. If you understand this simple truth, you will be less likely to be duped by slick marketing campaigns and less likely to lose your hard-earned money.

Keranique. Read the Reviews.

One such product that offers such a “risk-free trial” is Keranique, a woman’s hair growth product. And evidently, many consumers seem to be a bit confused about their risk-free offer. The following online review from a Keranique customer really caught my attention. Check it out:

“My biggest issue with Keranique is not the product..its the people who complain about it.  Do you not know how to read? The terms and conditions for the *** trial are all over the place but yet “no one is informed”. Also, for the idiots that think it’s free. What part of “risk free” and “trial” is hard to understand? Risk free does not = Free!!! I can’t believe people are so dumb that they actually think they are getting hundreds of dollars of products (prices of which are clearly listed on the *** web site) for free. I’m not sure where you are from but you don’t get to go to a store, put on a shirt, wear it for 30 days, and then bring it back for free.. so I think letting you try a product before paying for it is more than generous of them.  To end my rant I’d like to say, wake up, pull your heads out of your ***, read what your putting your credit card information into, and don’t expect things in life to be free. Cause you’re going to be very disappointed.” (Yelp, Review #563949)

Again, you must read these agreements very carefully before placing your order. The fine print usually explains that you must cancel your order if you are not satisfied with the risk-free trial or you will continue to receive the product and your credit card will continue to be charged. These are sometimes called, “Continuity Agreements,” because they last forever until you cancel.

FTC Rulings. Federal Trade Commission.

The Federal Trade Commission lists some helpful common sense tips on their website http://www.consumer.ftc.gov/articles/0101-free-trial-offers dealing with Free Trial Offers.

These include:

  • Research the company online.
  • Find the terms and conditions for the offer.
  • Look for who’s behind the offer.
  • Watch out for pre-checked boxes.
  • Mark your calendar.
  • Look for info on how you can cancel future shipments or services.
  • Read your credit and debit card statements.

Remember, in the end it is your responsibility to make sure you completely understand these offers before signing up.  As an adult, you are accountable for your choices. An informed and educated consumer is much more likely to be a happy customer.

How do you feel about “risk-free” trials? Until next time, I’m Attorney Francine Ward. Find me on my Facebook Law Fan Page, Twitter Law Page, Google+, and LinkedIn.


Cooling Off Period. FTC Rules. False and Deceptive Trade Practices.


Cooling Off Period. FTC Rules. False and Deceptive Trade Practices. Home Solicitation  

False and Misleading. Cooling Off Period.

False and Misleading. Cooling Off Period.

What happens if you purchase something through home solicitation, in other words, from a door-to-door salesman, but then change your mind? What recourse do you have under the law?

Sometimes it can be difficult for some people to resist an aggressive sales pitch from a sharp salesperson, especially when the salesperson is making his or her pitch face to face in your own home. However, federal law provides consumers with a “cooling off period” from home solicitation sales in order to protect buyers who change their minds after making a purchase or putting a down payment on a purchase.

There are federal rules in place that establish a cooling off period for home solicitation sales. These FTC rules give the buyer until midnight of the third business day after the sale to cancel the transaction. The seller must then refund the buyer’s money in full. Furthermore, a consumer who is cancelling a home solicitation sale is obligated to return the goods received to the seller, but only at the point of purchase – the buyer’s home. If the buyer decides instead to ship the goods back to the seller, the seller must reimburse the buyer for shipping costs. If the buyer doesn’t volunteer to ship the goods back and the seller doesn’t retrieve the goods from the buyer’s home within a certain amount of time, the buyer may keep the goods with no obligation.

Most states have very similar cooling off laws that are similar to federal rules.

Door-to-door salespeople are required by federal and most state law to disclose cancellation rights to the potential buyer.  The federal law not only requires that the salesperson verbally disclose to the buyer their cancellation rights at the time of the sale, but they must also provide the buyer with two copies of the cancellation form along with contract and/or receipt that is dated.

It is important to know that some transactions are exempt from federal cooling off laws. These include goods and services under $25 and sales of real estate, securities and insurance.

As is always the case, being informed of your rights as a consumer is the best defense against unscrupulous salespeople and companies.

How do you feel about making a purchase through home solicitation? And have you ever purchased a product in such as way? If so, what was your experience?

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Law Facebook Fan Page




, on my Twitter Page, in one of my LinkedIn Groups.