Deal Accelerators: Put Your Marketing Collateral Compliance on the Fast Track
A common roadblock faced by business teams is “red flags” relating to the legal compliance of marketing collateral materials. From advertisements to press releases and testimonials, to glossy brochures describing your new products and services, marketing folks are tasked with creating effective messaging to support organizational goals such as new product launches and brand awareness campaigns. However, because of the external nature of these materials, it is important that they comply with a wide variety of laws and regulations (not to mention other best practices) relating to advertising and intellectual property.
In light of these concerns, legal review of marketing collateral is a necessary step in protecting a company from future claims which could potentially arise out of the complex nuances of consumer protection and intellectual property regimes. Despite typical requests for a speedy turnaround, a thorough review takes time, especially if compliance issues are discovered. One way to help minimize these delays is to educate the marketing team about items they can easily take ownership of before approaching the legal department, as well as how to anticipate and plan for more complicated or time-sensitive issues.
The following checklist was designed with this purpose in mind. Although it is not intended as a substitute for legal review, ideally, it will help to speed up the approval process by eliminating last minute surprises that can cause delays. Even better, imagine the relationships fostered by a simple sharing of information. It’s truly a win-win for the legal and the business teams.
Marketing Collateral Compliance Checklist
This checklist is designed to address common issues relating to the legal compliance of marketing collaterals. In some cases, such as with regulated industries subject to more stringent rules, additional items may need to be included on this list prior to sharing with your team.Content Accuracy and Backup:
[ ] All facts and statements are true and correct, and not misleading or deceptive in any way
[ ] All facts, statements and assumptions are clearly sourced (name and date) within my document by reputable source
[ ] I have backup materials in my possession to verify all claims, express or implied
[ ] We do not make any guarantees regarding outcomes or that this product will meet each person’s unique needs *
[ ] I have not made defamatory statements (e.g., about other brands or people)
[ ] Case studies included are accurate, correct, and not misleading
[ ] All images are appropriate and not offensive nor misleading
[ ] The piece does not contain any unqualified superlatives or over-promotion (e.g. replace “the best” with “among the best”)
[ ] Any competitive advertising claims (comparing our services to a competitor) have been independently validated
[ ] We authored and/or own the rights to use all content commercially; text has not been copied from another source and is not subject to permissions from other owners (or if it is, we have permission and have provided attribution)
[ ] If copyrighted material is used, we have written permission and give attribution
[ ] If an independent contractor prepared materials, we have an agreement with them permitting use
[ ] We own rights to use all images, they have not been copied from the internet and are not subject to permissions from other owners (or if they are, we have the permissions and give attribution)
Testimonials and Endorsements:
[ ] Any experts referenced or quoted have approved the language and permitted us to use their name via release form
[ ] Any testimonial is from a typical user, under normal use, and the user has given us permission to use their name (if applicable) via release form
[ ] We have clearly disclosed if there is any compensation given to, or other affiliation with, such user
Logos & Marks, and Design:
[ ] I have used the correct logo(s), Trademark(s) and taglines, and complied with all applicable Brand Guidelines
[ ] I have not squashed, stretched, distorted, changed colors or moved any elements of the logo(s) or pre-approved graphics
[ ] I have not placed the logo directly over an image nor is it on a colored background
[ ] I have not reduced the size of my logo to less than what is approved
[ ] I have sourced my logo from the official company database, not copied and pasted from the internet
[ ] All marks are properly identified with ®, ™, etc. as applicable
[ ] If any third party marks are used, we have permissions and have complied with their usage guideline
[ ] I have used the correct fonts and colors
[ ] I have ensured that my design is clean, clear and simple
[ ] I have had someone proofread what I have written for punctuation, spelling and grammar
[ ] I have included the correct disclaimer(s) e.g., general advice, past performance, not giving any legal/medical/investment advice, etc.
[ ] All backup material, all consents and approvals, and all release forms from named individuals or people in images are in my files with this form and a copy of the ad
[ ] I have followed the “Golden Rule” – if the tables were turned, would I object?
[ ] Customize and add other items as needed per context and industry (e.g., may need more for regulated industry like healthcare, banking, pharma, etc.)
* As a marketer, of course you want to imply that your product could work for certain types people, and you are able to do so. The key is not “guaranteeing” any specific result for any specific person. You can say what types of people it works for rather than implying everyone with their unique individual situations will obtain the exact same results. For example, if a vitamin promotes better heart health, you can make claims (verified by studies) that it generally helps heart health in XYZ types of people or groups. However, you cannot guarantee that if the person reading the ad takes it, he or she will have a healthy heart, as there are many other factors involved.
© Brian Heller, Outside GC
This publication should not be construed as legal advice or a legal opinion on any specific facts or circumstances not an offer to represent you. It is not intended to create, and receipt does not constitute, an attorney-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal questions you may have. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.