Pub. 1 2019-20 Issue 2

There is also an element that the act cannot be outweighed by countervailing benefits to consumer competition. As you can see, both concepts can be in the eye of the beholder. When looking at deception, one of the guiding principals used by the Federal Trade Commission is the “net impres- sion” of the advertisement. An advertise- ment that is very busy has disclaimers in small font and light color, may be techni- cally correct, but could blend, and cause an advertisement to fail the net impres- sion test and be considered deceptive. Representations made in advertising do not require intent to be in violation of the Federal Trade Commission laws. When specifically looking at advertising disclosures or disclaimers, a guideline used by the Federal Trade Commission is called “the four Ps,” which stand for prominence, placement, proximity and presentation. Prominence considers whether the dis- closure is in a manner that a customer can see, read or hear. You need to be careful of mouse print, light-colored fonts and rapid-fire delivery. Disclaim- ing language should use the same size font as the number or representation it is qualifying. Placement and proximity are closely related. Disclosures should have some degree of closeness to the information it qualifies. For example, disclosures on the back of a direct mail product that limits something on the front side, or something multiple clicks away on your website, can cause con- cern. The fine print at the bottom of a page with many numbers and symbols, and which qualify representations made on a page, can potentially not meet the four P’s. Finally, presentation. Presen- tation is something that examines the wording and format and attempts to de- termine how easy it is for consumers to understand. Some examples are the use of technical jargon or terms, and mat- ters buried in fine print, multiple aster- isks, gray font or print, and loud music on videos. A few common, or old-school, terms to avoid are things like “let’s trade keys,” “liquidation sale,” “we pay off your trade no matter what you owe,” “this offer is not available to the general public,” “we finance your future not your past,” “ev- erything must go regardless of profit or loss,” “your job is your credit,” and such terms as free, gift, bonus or invoice. Lastly, I will address the subject of rebates. Rebates can certainly be advertised and shown to lower a price to a consumer. However, to use a rebate to lower an ad- vertised price to a consumer, it should be a rebate that is basically available to any- one purchasing that car. As we all know, there are a variety of rebates that may be available at any one time, but clearly a customer cannot be eligible for all re- bates or incentives from a manufacturer. For example, a first-time buyer incen- tive is not going to be consistent or eligible alongside a conquest rebate. Simply put, when advertising rebates, use only those that will be available to practically all consumers who are pur- chasing that vehicle. Our next Counselor’s Corner will review the concepts of “trigger terms” in leasing and retail advertising and the West Vir- ginia Gift and Prize Act which is applicable to “contest” mailers. While we are all attempting to capture a market to sell our goods and services, we need to be smart in doing so and appreci- ate the complexity and subjectivity of our federal advertising laws. Of course, there is always help, which is only a phone call away. Best of luck until the next article. t Mr. Brown serves as general counsel for the West Virginia Automo- bile Dealers Associa- tion. You may reach him at (304) 344-0100 or jeb@pffwv.com . www.pffwv.com. Issue 1 2020 33 WVADA