With Black Friday and Cyber Monday right around the corner, we thought we would share a few last-minute advertising tips that can help you get through some of the most important shopping days of the year.  So, here are a few things to think about from some of the members of the Frankfurt Kurnit advertising group.  

Sale Prices

Regarding the advertising of sale prices, Hannah Taylor suggests:  "Ensure your advertised discounts are genuine and comply with federal and state pricing laws. The FTC and many state laws require that advertised "original" or "regular" prices be truthful and reflect the actual price at which the product was recently offered for sale. For instance, do not inflate the "regular price" to make discounts appear larger than they truly are. Additionally, familiarize yourself with state-specific regulations that may impose stricter requirements on pricing claims, such as minimum timeframes for which an item must be sold at the "regular price" before it can be discounted. Non-compliance can result in hefty fines, lawsuits, and reputational damage."

All-In Pricing

About those extra charges that you're thinking of tacking on, Kate Patton says:  “Do not lure consumers with artificially low prices that later inflate with mandatory fees.  Make sure that your advertised prices include all required fees and charges (other than certain government taxes and shipping costs) and that you disclose upfront the amount and purpose of the fees and whether they are refundable.”

Sufficient Supply 

If you're worried that you may run out of items that you're advertising this week, consider this advice from Terri Seligman:  “It is a black letter principle of advertising law that marketers should be able to meet “reasonably anticipated demand” for the products they advertise.  Widely advertising a product in very limited supply can subject a company to both legal and reputational risk, as advertisers like this and this discovered. No marketer wants to be accused of engaging in bait and switch or otherwise make their consumers unhappy by not being able to fulfill orders. What can a Black Friday marketer do to mitigate risk if its supply of product – priced and offered as a special deal for Black Friday -- is not unlimited?  First, it can choose an offer window tailored to meet reasonable demand for that period of time. Second, it can choose how and where it publicizes its offer carefully, in a limited number of channels.  Third, it can pull the offer when supplies are near depletion. And, finally, it can signal that supplies are limited by saying so.  (Caveat: don’t say it if it’s not true though!  That’s a dark pattern!).” 

Subscription Offers

If you're planning on marketing a subscription, Terri Seligman also has this to say, “Offering a free or discounted trial for your subscription product as a Black Friday deal?  Remember that, although Black Friday only lasts a day, that free or discounted trial will likely automatically convert to a paid subscription that goes on and on until cancelled.  Therefore, it is a “negative option” program and it’s covered by the new federal “click to cancel” rule and many state laws, including California’s strict Automatic Renewal Law.  These laws and rule require marketers to make specific disclosures; obtain the consumer express written consent to be charged on a continuing and automatic basis; provide an easy (and easy-to-find) method of cancellation; and send out notices prior to free-to-pay conversion and renewals. Marketers not in compliance with these requirements in time for Black Friday should be wary of the very real potential for regulatory and class action risk.”

Disclosures

My tip for Black Friday and Cyber Monday is this:  “If there are material terms related to your special offers, make sure to disclose those terms clearly and conspicuously – keeping in mind that the way that the FTC thinks about ‘clear and conspicuous’ is a lot different than we've thought about it historically.  If there are important terms that consumers need to know, make sure that they're difficult to miss – and, if you're advertising online, those disclosures should be unavoidable.  In other words, it's the advertiser's obligation to ensure that consumers see, read, and understand the disclaimers.”

Data Collection

And, finally, a great reminder from Andrew Folks about all that data you'll be collecting from consumers:  “Ensure websites offer clear and conspicuous notice of any data collection, particularly with respect to any cookies, pixels, and other tracking technologies. Consumers must be able to opt-out of personal data sharing and easily unsubscribe from marketing communications. Retailers should minimize data collection to what’s necessary to complete the transaction, rather than collecting excessive personal data for future use.”

Happy Thanksgiving!

If you're looking for some more Thanksgiving-themed advertising law guidance, check out these two posts from the vault.  The first is Planning to Advertise That Your Thanksgiving Turkeys Were ‘Thoughtfully Raised'?  And the second one is Can Your Thanksgiving Day Parade Float Communicate False Advertising Claims?  Have a great Thanksgiving!