D+AS MAGAZINE

LEGAL — Do You Have a Deceptive Ad?

© 2002 Door & Access Systems
Publish Date: Summer 2002
Author: Naomi Angel
Page 34


Legal Tips

Do You Have a Deceptive Ad?

By Naomi Angel

Several dealers have informed us of some problem dealers who are making questionable statements in Yellow Page advertisements. We consulted with the Better Business Bureau and several governmental Web sites about these claims, and we found some helpful information.

Keep in mind that claims are not limited to express language. Pictures may also imply statements about quality or performance.

For Example…

Here’s a sampling of questionable claims in door dealer ads:
  • "Rated #1 in Customer Service." You must be able to substantiate any advertised claim before you advertise it.

  • "Licensed and Insured." If you’re referring to your driver’s license and your term life insurance policy, these statements could be ruled by the courts as deceptive.

  • "Guaranteed Lowest Prices." Can you prove it? The courts may determine that this statement is part of an overall strategy to deceive.

  • "Emergency Service Within An Hour." If you cannot always deliver, then you cannot make the promise.

  • "Lifetime Warranty On All Parts." Oh, really? Avoid meaningless puffery. You’d better have a statement of limitation, or you could face considerable exposure to legal action.

  • "Locally owned and operated." If you’re not, don’t say it.

  • "(Your city)’s Largest Selection of Garage Doors & Openers." The Prior Substantiation Rule requires that you must be able to prove any claim before you make the claim.
  • Using Many Business Names. Even though it’s not illegal by itself, it can be part of an overall strategy to deceive the public and avoid scrutiny.

  • Posting Manufacturer’s Logos and Photos that you are not authorized to use. Those manufacturers can sue you and force you to "cease and desist" using them.

Deceptive or Unfair Practices

Here are some examples to help you identify deceptive or unfair business practices. To find a list of your state’s consumer protection laws, go to the Web site for your state’s Attorney General and look for a link to consumer protection information.

  1. Passing off goods or services as if they were made by another manufacturer.
    For example, you cannot indicate that a product or service is manufactured or provided by company X, when it is actually manufactured or provided by company Y.

  2. Claiming that goods come from a particular place, when in fact they do not.
    This includes representing that products are manufactured in the U.S.A., when they are manufactured elsewhere.

  3. Selling products as new, when they are actually used.
    Our DAS Ethics Survey, for example, revealed that some dealers sell used torsion springs as new.

  4. Claiming falsely that products or services are of a particular quality or grade, or that goods are a certain style or model.
    In the jewelry industry, this includes selling a 10K ring as if it’s a 14K ring. In our industry, it includes selling a garage door as 24-gauge steel, when it’s actually 26-gauge steel.

  5. Making false or misleading statements about another business or its goods or services.
    Generally, it’s best to avoid publishing critical statements about a competitor.

  6. Advertising goods or services with the intent to not sell them as advertised.
    This is sometimes called, "bait and switch." A business might advertise a low-priced product, when they actually have no such product or no intent to sell such a product.

  7. Making false or misleading statements about sale prices.
    For example, it’s deceptive to advertise "On Sale Today Only," when in fact the item has been offered at that price for the past month.

For more information, consult "Dangerous Words," the Legal Tip on page 44 of our Winter 2001-2002 issue. Naomi Angel serves as DASMA’s legal counsel and is an attorney with the Chicago law firm of Howe & Hutton.

This article is provided solely for informational purposes and does not constitute legal advice. If you need specific legal advice, consult legal counsel.


The Better Business Bureau’s Code of Advertising
Basic Principles and Guidelines

  1. The primary responsibility for truthful and non-deceptive advertising rests with the advertiser. Advertisers should be prepared to substantiate any claims or offers made before publication or broadcast and, upon request, present such substantiation promptly to the advertising medium or the Better Business Bureau.

  2. Advertisements that are untrue, misleading, deceptive, fraudulent, falsely disparaging of competitors, or insincere offers to sell, shall not be used.

  3. An advertisement as a whole may be misleading although every sentence separately considered is literally true. Misrepresentation may result not only from direct statements but by omitting or obscuring a material fact.

For more details, go to www.bbb.org/advertising/adcode.asp.