Issue #83—November 1, 2019
Last week I heard some news via the copywriter "grapevine". And it inspired the topic we're focusing on in this week's issue.
The news I heard was this: one of the world's top direct response companies got sued by the FTC for their financial "checks" promo as well as a diabetes "cure" book offer.
The FTC named the two editorial figureheads for both publications as defendants, along with the company's subsidiaries. It's not the first rodeo this company has been to, so chances are they'll get through this, though it's going to cost them plenty.
Even if it doesn't, it's still every direct response entrepreneur, marketer, and copywriter's worst nightmare. So how do you minimize your risk of ending up in this kind of deep "doo-doo", without neutering your copy so much that it doesn't sell or stand out?
Step one: Acceptance
The first step, obviously, is to always have your copy reviewed for compliance by a qualified attorney. Many of the biggest companies do this routinely (including the one I just mentioned that got sued).
But you'd be surprised how many companies, even fairly sizeable ones, don't take this step. They rely on their copywriters' research to back up their claims (or not).
And if, in the marketer or publisher's non-law school-educated judgement, they think it's not too "risky", they'll run with it.
This reminds me of the old joke, "What's the longest river in Africa?"
"De-NILE". That's right, denial.
It's so tempting to cave in to pressure when everyone around you is pushing for an idea you know deep down is wrong...or to give yourself permission because "everyone else is doing it".
But you have to realize that you never know when the FTC sledgehammer is going to come down on you if you stray too far outside the "safe" zone of following the rules.
So accept the fact that (a) your copywriter or marketer or YOU are (likely) NOT a lawyer; (b) the business costs of getting "caught" can be very high, whether you work for the company or you're a freelance copywriter whose royalties go kaput; and (c) you're not going to like everything you hear from a lawyer, but that doesn't mean you get to do "selective hearing" and ignore it.
Note: this "selective hearing" may have been what got the aforementioned company in trouble with the FTC. But they may have been able to avoid it with this next step...
Step two: Compromise
I've been arguing with lawyers about compliance claims for supplement copy since the early 1990s (I know, I was a child prodigy). Back when I helped launch and run the Healthy Directions business for Phillips Publishing, it was all-new territory for the company.
We'd get the copy together for a new supplement promo and run it by our FDA-oriented attorney. I'd spend hours on the phone with this guy, Mel Drozen.
I'd push back on every claim I wanted to make that he wanted me to take out or tone down. But we'd work together to find a reasonable compromise. I didn't always like it, but I understood what was at stake. And here's a funny thing...
It often didn't matter if we watered the copy down. In fact, over time I found that, even when working in later years with other companies, it actually improved the believability of the copy. Too outlandish a claim provokes skepticism and disbelief.
I know we live in stranger times today. I just wrote last week about how you have to go the extra mile these days with emails to avoid being boring so you can beat out your inbox competition. Same is true on Facebook and Google.
So make yourself stand out in other ways, besides making claims so big, you know (if you can get past denial) they're likely to get you in big trouble if you're caught. As the FTC's Director of Consumer Protection puts it...
"If you’re trying to get the FTC’s attention, making up stories about disease cures and government checks is a good way to do it.”
Be creative and come up with something else to sell your products. We can all do better.
But sometimes, it's not a copy issue that initially lands you in the "hot seat" with the FTC or FDA. Sometimes it's this next mistake instead...
Step three: Smart avoidance
There's an old Japanese proverb: "The nail that sticks out shall be hammered down."
So while you want your copy to stand out and attract eyeballs, you want to avoid drawing unwanted attention in other ways that can end up causing you trouble.
Yes, the copy itself can be the main issue that attracts scrutiny...like the slew of financial promos offering every kind of creative twist on free checks from the government imaginable...or outright claims of supplements curing diabetes.
But a lot of times, it's some other factor. And the most common factor I've seen is when "til forbid" or auto-ship offers are used.
This is especially true if you're promoting to an older audience. They generally don't like getting their credit card automatically billed, unlike the younger generation that's more comfortable with it.
So if you're going to do these kinds of offers to an older audience, being crystal clear is very important. Subterfuge is not the friend you think it is in these cases.
In my 22 years of freelance copywriting, and several years before that in marketing and running the Healthy Directions biz, I've only had ONE supplement promo get scrutiny from the FTC.
I had written a joint supplement promo that was kicking butt for a Florida-based supplement company. I'd worked with them on several other successful promos before this one, and even though they didn't run copy by compliance lawyers in advance, we'd never had any issues.
In retrospect, I should have known that our days were numbered.
You see, this client routinely used "call-in only" offers on the direct mail promos I wrote for him. There was no price mentioned, only something along the lines of "Get started today for just $5" or "as little as a dollar a day".
Premiums like special reports or free bottles of multivitamins were promoted heavily on the order form, with the toll-free number the only way to order.
These supplement offers were going to mailing lists with primarily 65-75 or older folks. These folks would call in and speak to the inbound telemarketing firm the company had hired. Next thing these folks knew they were getting a one or two month supply showing up along with their "trial supply" and getting charged for all of it as part of the autoship.
Now, I'm sure these telesales reps explained what was going to happen next to these folks on the phone. But there will always be those who get confused or forget what they agreed to. And since nothing was in writing, they couldn't refer back to anything.
So the FTC ended up getting some complaints about the offer this company was using. This led them to ultimately scrutinize the promo...and while it was relatively clean in terms of claims, there's always something they can find problems with.
My client had to stop mailing the promo "as is" right away, so the nice royalties that were coming in for me came to a screeching halt. Fortunately, my problems ended there, aside from scrubbing the copy clean of any claims risk for any future use (if I recall the product ended up no longer being promoted).
Not long after for these and unrelated reasons, my client left the supplement business completely and went into something else. The lesson here is, be very careful with your autoship language and offers. They're often what land you in big trouble, even if your copy is fairly compliant. This is one area where it's much better to blend in.
Now let's take a look at a few examples of where I think companies may be pushing things a bit and putting themselves at risk. I could honestly look at just about any promotion out there and find things that fit the bill, including offers my own clients are sending out.
The overall lesson here is, there's no use bringing big problems onto yourself that can be easily avoided...
What's in Kim's Mailbox?
Let's take a quick look at the front cover of a "slim jim" direct mail promo I got a few weeks ago in my mailbox. It's for a blood sugar control supplement.
And while it's far more toned-down than one a client sent me last year that had "diabetes" all over it (major claims risk), it's still making some word choices that aren't contributing enough to be worth the risk...
Okay, there's a lot that's working here on this promo cover, especially the journal-like look that has it masquerading as looking valuable...one of the biggest advantages you can give your promo.
I also like the long list of bullets that begin with action verbs, although they missed the opportunity to have each of those verbs end in "s".
Those of you who have been reading Copy Insiders a while know I've written before how that one tweak makes your copy stronger by making the product appear to do the work FOR you (i.e., Drops, Crushes, Protects, etc.) vs. you having to do it.
However, there's really no need for some of the potentially problematic words here, like "non-prescription" in the headline or "pharmaceutical" (underlined for unnecessary emphasis) in the subhead. These words will only cause misery in your life if you use them.
It's implied when you're offering a natural supplement that it's drug-free after all. You really don't have to spell it out or pretend you're a drug (if anything, it could make the prospect less interested).
Meanwhile "10-second blood sugar solution" is buried in the last 2 lines of the subhead, and the phrase is much more intriguing and benefit-oriented.
And what's with "growing new beta cells" in my pancreas? Sounds like cancer, No Thanks!
In any case, there are lots of things here that could be done better, and keep you out of potential trouble. Now let's look at another...
I saw this ad a few Sundays ago in Parade Magazine, which gets stuffed with all the advertising inserts in my Sunday newspaper.
I always skim through it each week just to see the kinds of ads that are targeting the senior market, typically with health products. These advertisers pay a pretty penny, so I can assume they're often tested control ads.
I was a bit surprised to see a CBD offer from Bradford Exchange, which specializes more in kitschy keepsakes offered on installment payment plans or monthly subscriptions.
But I guess that's as sure a sign as any just how mainstream CBD products are getting. In any case, when you look at the copy, you can see they're not taking huge risks. This is going to a bigger, unfiltered mass market in terms of exposure, so that makes a lot of sense.
You can see how a little toning down of copy doesn't really hurt your case much, either. "Act as an anti-inflammatory" is probably the riskiest thing here...but it and the other bullets are preceded by "CBD is believed to". So it's covering its butt a little bit anyway.
I could dissect the copy further, but I won't. I've gotta wrap this up, and I want to focus on the offer anyway here. The body copy explains it pretty clearly: how much you'll be billed and the fact that you'll receive subsequent "sets" each month. There's a free gift as a bribe, and a complete removal of risk with the 365-day guarantee.
My concern is the terms of the offer aren't condensed and summarized on the order coupon, which your eye tends to jump to. I'm thinking just another line of acceptance copy, i.e., "I understand that I'll continue to receive a new set each month" and clarifying the preceding line with what they'll actually be billed would be more clear.
And while being more clear might cost them a few sales, it could not only save them some future FTC scrutiny and other pain, the people who do become customers will be happier, more satisfied customers since they won't be getting any nasty surprises they didn't bargain for.
When you work so hard to bring on new customers, it's shooting yourself in the foot to have them start their relationship with you being pissed off instead of delighted.
I'm going to wrap up this week's issue with some compliance advice I heard from Facebook advertising wiz Mike Rinard at Copy Chief Live this week:
"Let integrity be your guide."
It can also be your guide to creating more successful promos...and increasing lifetime customer value.
Yours for smarter marketing,
P.S. If you're new to my list (or not), I want to remind you that you can read past issues of Copy Insiders going back to the beginning of 2019 at my blog here. To get all 46 value-packed issues from 2018, you can get my 260-page e-book right here. (Use the exclusive Copy Insiders discount code CIHALF and you'll get it for 50% off).