You come across some aspect of advertising law every day. When you see any form of advert, no matter what channel, it must comply with a strict set of regulations. These parameters govern the form advertising takes, what may and may not be said, and what claims companies can make legally.
As an attorney practicing in this field, you'll never be short of work to do. You'll be there to ensure the company is complying with all the current regulations. You'll also want to keep your clients on the straight and narrow ethically.
Could advertising law be a field that you'd thrive in as a career? In this post, we'll give you a thorough introduction to the topic so that you can decide for yourself.
The History of Advertising
Advertising ranks amongst the world's oldest professions. Archeologists have unearthed advertising boards used in Ancient Egypt, for example. Throughout history, ads have formed a vital role in society and cultural interactions.
If you feel that we're the only generation aggrieved by advertising, you're wrong. In the 1600s, Charles II outlawed signs that blocked the sun and airflow in London. At that point, advertising had cluttered up the city so much that you couldn't go two steps without encountering an ad.
It sounds familiar, except now our cluttered advertising space is the internet. The industry is also mostly unregulated.
The United States initially viewed advertising as a form of free speech. The view of advertising only changed in 1976, when the courts made the right to advertise distinct from the right to free speech.
The change allowed governments to start regulating the advertising industry without stepping on civil liberties. The refinement of regulations took another huge step forward, thanks to Valentine v. Christensen, 1942.
The case explored the issue of the exhibition of a submarine for profit. New York City prevented the owner from using flyers to advertise the event. It was a case that struck a nerve.
It eventually ended up in front of the supreme court, and the ruling bolstered the city's right to impose regulations as they saw fit.
Since then, we've been making progress.
Litigators raised another notable case in 1964. What was interesting about this one was that the advert was political and criticized those in public office. It was a tricky case to try because freedom of speech played a significant role in the content.
Over the next decade, other marketers jumped on the marketing bandwagon. They started placing adverts with both political and commercial messages. In around 1975, the Supreme Court refined the regulations further.
Up until this point, the government could ban any advertising, but the Supreme Court amended that privilege. The court felt advertising could only be banned if it was false or deceptive. Advertising products were allowed to continue if they were legal and exhibited in a truthful manner.
The state had control over:
- the type of advertising used
- where companies could legally use advertising
- the time of advertising
The state could not ban any ads without due cause, however, and over time, the law was transformed.
Who governs our advertising law?
Now that you understand how the regulation of the industry was formed, we'll look at how authorities enforce these laws.
In the states, the Federal Trade Commission (FTC) ensures advertising is honest and fair. It has created a comprehensive set of regulations for businesses to follow.
The FTC has an influence over:
- what a business puts on its product labels
- how it runs its campaigns
- the claims businesses make (the primary ruling here is that companies must support claims by evidence)
For example, if you produce a health food supplement for people with arthritis, you cannot claim that it will cure arthritis. What you can say is that during trials, 85 percent of the participants showed a 15 percent improvement in mobility after consuming the product.
It's a subtle difference. The second statement implies that it's an effective remedy, not a cure. The difference is that there's evidence confirming the second statement.
It's also interesting to note that any claims made by the company must be able to stand up to intense scrutiny. If a company states their product strips grease in sixty seconds, it had better perform as implied. Rules apply to any form of advertising and every platform, whether there's a board stuck up in the yard or multimillion-dollar advertising campaigns at stake.
What does an advertising attorney do?
Working for the Company Putting Out the Ads
A practice in advertising law will primarily be a consulting role. You'll work closely with businesses to ensure that they don't contravene any advertising regulations. There may be some litigation to defend against in court, but most of the time, you'll operate in an advisory role.
You'll need to learn everything there is to know about advertising regulations in the United States. If your client operates abroad, you'll need to understand the relevant foreign advertising regulations, too, and consult with experts overseas.
It's essential to have a strong background in legal research. Today's regulations emerged from the precedents set by previous litigation, so if you want to stay at the top of your game, be prepared to dig through old case law.
You'll be required to check:
- advertisements
- product labels
- company websites
- company literature
You must consider FTC regulations when you check the advertising for the company. Should you find the ads contravene those regulations, you'll need to advise your client on the specific changes to be made. It's essential to understand the regulations and potential claims that might arise thoroughly.
Working Against the Companies Putting Out the Ads
The flip side of this kind of practice is that others want to enforce the regulations. Considering the tight rope that most advertisers walk, it can be challenging to find infringements that will hold up in court.
There are going to be cases where companies have overstepped the mark, though. You could work with a state agency to police those companies, or you could work with private clients bringing civil suits against advertising companies.
Where will you find work?
There are several options for specialists in this field, including:
Private Law Firms
You could work in a private law firm. If you choose a prominent player in the industry, with a powerful advertising law division, you could work on advertising law exclusively. You would see a wide range of clients and garner plenty of experience.
You would be expected to advise your clients on what they can and can't do with their advertising campaigns. You might also be expected to defend them in civil suits resulting from claims made against their advertising. The claims can be made at a settlement conference or in court, which is why excellent negotiation skills are essential.
These positions are often lucrative but can be challenging to find. Smaller firms don't usually have a dedicated division, for example. Your best bet here is to find work at a firm in one of the bigger cities, like New York or Boston.
The work varies, which should always be interesting. If you can secure one of these positions, it's worthwhile for the experience. The knowledge you gather here will enable you to command top dollar as in-house counsel or in your own business in the future.
Working for Companies
Finding work as in-house counsel will typically be a lot easier. You'd only work with the company and its subsidiaries. Focusing on one industry also makes it possible to become an expert in that field quickly.
The focused attention could open doors later if you want to start your practice, for example. The work is usually better paid than it would be at a law firm, and it's a stable environment, with benefits that can be a massive drawcard.
The downside, though, is that the work can become tedious. You're not going to find much variety in the daily routine. Your focus is to ensure the company doesn't contravene advertising regulations, or you might be called on to defend the company if they make an error. The challenge could be in a court, at a settlement conference, or an FTC hearing.
Become an Enforcer of the Regulations
If you want to make a real difference in society, enforcing the regulations could be a better fit. You could find work at a regulatory agency, such as the FTC. Alternatively, you might join a government department like the Attorney General.
Many government agencies have an in-house team to address these matters. The upside is that you get to be a crusader for consumers. You'll also be able to implement fines and take unscrupulous advertisers to task.
The disadvantage is that you're not going to receive a huge salary. You'd earn more in private practice, or as in-house counsel for a firm.
How do I get started?
What's most exciting about this field is that it's dynamic. The introduction of new technology changes the way we communicate with one another regularly.
Thirty years ago, your advertising options were limited to:
- print media
- pamphlets or flyers
- advertising boards
- direct mail
- TV advertising (if you could afford it)
Now, we have all the above options in addition to a myriad of new platforms, which include:
- social media
- mobile marketing
- email marketing
- blogging
- video marketing
- and more
The advantage of this progress is that marketing is becoming more complicated. It makes a career in advertising law far more lucrative. It's why more law schools are starting to offer courses in this field.
If you'd like a start, find out what courses your chosen school offers. In cases where the campus doesn't offer advertising law as a specialization, you'll still find courses. There are also several supplementary programs on offer to help you advance your career.
Be prepared to put in a fair amount of effort. Advertising law can be a complicated subject to cover. If you find the general topic overwhelming, you can choose a further specialization.
Here are related courses that you can opt for instead, but these are just a smattering of the specializations to consider:
Trademarks
You'll advise companies on the legality of their chosen trademark. Then you'll help them enforce their rights if others infringe upon them.
Intellectual Property
In this internet age, intellectual property can be a particularly dynamic field. You'll protect your client's rights in and advise them against making mistakes when it comes to someone else's intellectual property.
Internet Law
Another interesting field, internet law is also still developing. If you're interested in social change, this could be a fantastic starting point.
The Future is Bright
Advertising law is a field that's just started to gain real traction. It's an exciting field because of the technological era that has engulfed the globe. Digital marketing offers a range of challenges that no one could have foreseen.
It's an excellent place to start if you want to change laws and set new regulations, for example. There is also a wide range of career options to consider. Finally, you'll have work to do while there are advertisers, and knowing society, that will be for many years to come.
Advertising dates to ancient times. It might have changed its format today, but it's still going strong.
Resources for the United States
Advertising Law Resource Center
The Advertising Law Resource Center is a comprehensive source of information about compliance in this field. Bookmark the site—you will refer to it often. Keep in mind that you may need to do some digging here.
The site references the briefs and articles that the Advertising Compliance Service has published. The records started in 1981, and they ran through to 2015 when the service was shut down. There's an abundance of useful information in this archive.
Audit Bureau of Circulations
The Audit Bureau of Circulations came about in 1914. It began as a way to hold marketers to account for their devious marketing techniques. It still serves as a trusted source for circulation figures.
The Division of Advertising Practices
The FTC department‘s purpose is to protect the public from unscrupulous marketers. They investigate and prosecute cases of false advertising that have:
- negatively impacted on health and safety
- affected the consumer's economic status adversely
For example, when a company promises a 50 percent return on investment over two weeks, it is clearly a scam. The FTC could step in to prosecute, preventing consumers from losing an investment.
The FTC can prosecute the cases in criminal courts, too. It coordinates with other agencies, local and international, to ensure that advertising practices are fair and transparent. It might opt to lodge an administrative lawsuit to prevent unfair marketing, for example, or apply for an injunction to stop a company from airing its advertising campaign.
Advertising and Marketing on the Internet
This page by the FTC gives you the guidelines to follow with online advertising. You must protect your client's privacy, and the internet allows us to collect a host of statistics. How we use those statistics, however, could be in contravention of the privacy laws.
Read through the FTC page carefully to ensure that your company is not at fault in this area.
The National Advertising Division
The Better Business Bureau absorbed the National Advertising Division. This service offers a cost-effective alternative to litigation and is also excellent for the speedy resolution of issues. The plaintiff lodges their complaint with the division, and it has sixty days to investigate the matter.
The time frame is far shorter than a typical court case. It allows companies to receive a decision before the campaign closes. Unlike a court proceeding, the investigation won't form part of the public record.
They'll release their decision in a statement and set out the points made by both parties.
The Lanham Act
It's essential to be well-versed in the Lanham Act if you're working with trademark law. While there are other statutes, and common law to consider, the Lanham Act is the best place to start.
Who will excel in this field?
Lawyers or attorneys in this advertising law need a keen eye for detail. They need outstanding research skills to dig through all the information and find relevant details. Strong negotiation skills come in very handy, as well.
Litigation is unnecessary for most aspects of this practice, so if you're not a strong litigant, you might find this a comfortable niche.
Final Notes
Advertising law can offer you a lucrative and exciting career. You may even have the chance to impact future regulations materially. You have several career paths open to you:
- in-house counsel
- working for a law firm
- private practice
- enforcement of rules
Advertising is one of the oldest professions in the world. As such, we don't see it going anywhere anytime soon. If you're looking for job security, this is about as good as it gets. If you are willing to put in significant effort, you can rise to the top of your field and gain plenty of valuable insight into an evolving area of law.
