Disclaimed to Death – Avoiding Advertising Disclaimers in Advertising and Marketing

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That’s a good way to start any article in this magazine according to several lawyers I’ve spoken with and by their very behavior, I’d have to say absolutely each and every lawyer, middle level executive, probationary staff member and even the contractual cleaners working for the ACCC.

They are nice, well-meaning people (God knows I’ve met enough of them over the years) who are simply trying to do their job to the best of their abilities, but they are hamstrung, like almost all lawyers, by a depressing lack of imagination and a distinct inability to see the consequences of their actions beyond the next ten minutes.

The ACCC keeps forcing upon the brow-beaten Australian business scene practices that are out-dated, boring and plain economically inefficient. It never seems to ask if there is an alternative – if they could achieve things in a simpler, easier, more human –friendly way.

This article I’m going to discuss one of them. My enemy of the month. Bleeding disclaimers. But that doesn’t mean I’m going to stop there. I’m looking forward to more articles about the ACCC. (The main reason is that I spent months thinking about whether I had the guts to have a go at the ACCC and my eventual, chicken-shitted conclusion was that I was scared to. Then I thought to myself, why should any Australian institution (apart from the Army, and those guys in black riot gear who jump out of pot plants if you whisper ‘bomb’ at Tullamarine Airport) scare the writers/readers of Marketing Magazine? Why should someone like me be fearful of putting their nose out of joint?  What sort of big ugly bully can run around the school-yard threatening everybody and no-one blinks an eye-lid? And I thought, fuck it, this is supposed to be a democracy and we should have the right to free speech even if it’s not welded into our constitution like the Bill Of Rights is in America.)

So if you happen to have something to tell me about an annoying practice of our leading corporate regulator, please forward it to me and I’ll knock up another couple of articles. I reckon given they are fully funded by me and the rest (sadly not many of us) tax-paying public, they are fair game in the only publication in the country that has the balls, and arguably the professional cudos, to have a real shot at them.

‘What’s wrong with disclaimers?’ I hear your in-house corporate lawyer say over her morning cup of Chai Tea? “They are designed to ensure those evil marketing people don’t go off making promises our operations and manufacturing departments cannot fulfill. Disclaimers allow us to be forthright with the public – we must meet the letter of the law and if we don’t supply batteries, or if this competition is not legal in South Australia or if we’re not actually going to make you look younger, sexier, then we should not claim that in an ad.” She goes back to her Chai Tea. You fall over, pole-axed, and lie on the floor, crying, convulsing and vomiting your breakfast all over your $2,000 suit.

Let me speak for you, while you are still gasping for air and spitting out bits of egg and stale coffee and trying to focus on the office kitchen’s linoleum. The reasons disclaimers cause angst amongst marketers are many, but I’m going to have a shot at summarizing the main ones below:

NB. For the purposes of this I’m mainly talking mainstream media – radio, TV, outdoor, magazines, major websites, but the issues typically relate to anything the ACCC gets involved with.

They take away the magic of the ad

Having a pathetic, garbled, usually rushed disclaimer that says exactly the reverse of what your ad was promising, straight after the ad, destroys the creative entirely. Whatever theatre of the mind you were able to produce in the proceeding 25 seconds has been well and truly destroyed by the ending. If there’s one thing an ad should be able to do is take the punter into another mind-set and deliver the message ‘contact us this way’ at the end, so the punter goes and does just that. And that’s exactly where the disclaimers are usually placed. So the end game is the punter has forgotten the idea and message of the ad by the time the next ad starts. Waste of money.

They bore us to death

Disclaimers are almost never funny. Occasionally someone has the merit to run them in a chip-monk voice or similar for a ha ha ha, but then they are often told off by the ACCC for not taking this stuff seriously enough, as if to be serious is to be right. Regardless of how right or wrong I may be about whether you can be serious and also be funny, which of course you can, it does not excuse bad manners and bad manners to me is boring the public to death.

The public, love em or hate em, still deserve to spend their day listening or seeing entertaining ads. Other wise, they’ll simply switch off and entertain themselves – just like they are now doing in droves via face-book/you-tube, cause they are bored with conventional media.

They ruin our work

Nobody writes with the desire of finishing their great ads with a crap ending. People like me and the rest of the hard-working advertising fraternity sweat hours trying to think of entertaining ways to win over the ever dizzy public to do our client’s bidding and sell more widgets. The disclaimers simply ruin the entire effect like your fresh vomit has ruined your new Italian suit. No matter how much you try to create another impression, they end anything badly.

If you run them at the start, you are instantly apologizing before you begin. It’s worth trying sometimes, but it’s not the answer. And writing ads that don’t push the envelope, while they accomplish the job by definition, (the say 2/3 of ads that do not carry a disclaimer) does not make them any better. They are invariably just safer. More wishy-washy. Less creative. Less effective. Or their industry simply does not presently have the microscope of the ACCC bearing down on it’s back ….

They are destroying main-stream media

The ever tightening grip of legal paranoia and disclaimers makes mainstream media a more boring place to go and makes alternative (read digital) media so much more interesting. It’s easy to control radio – you can take away the license of the broadcaster. Same with TV. Magazines, outdoor, you can hunt down the advertisers easily. But given they can’t control/regulate/influence much in the digital sphere, by ruining free to air, the ACCC are effectively shitting in their own nest.

They are not applied much to new media

Yeh, the occasional action brought against a banner ad on Yahoo Seven or similar, but the bulk of digital? Not a peek. When are they going to get to this sort of heavy police-action on the web? Can you imagine a 5 second banner ad on your favorite site with a two second message and a three second disclaimer? I can. Help me….

They make the company look deceitful

Most of the companies I know/have dealt with over the hundreds of years I have been in marketing are not dishonest, are not trying to rip off the public. They are simply trying to provide a product or a service in an efficient manner and get paid a fair dollar for their efforts. They are not charlatans. Not crooks. They are here to sell stuff. Yes, they put a positive spin on the story, like obviously. Or we’d all starve. It’s the entire basis of our society, trade. Otherwise we’d be living in caves and growing potatoes and corn in a subsistence existence.

If it’s your job to sell holidays to Lizard Island, then you have to say things that are positive about the place. That it may not be the absolute best holiday you could ever take cause it’s the rainy season and you could die if you go near the water in the stinking hot weather because the box-jellyfish (100 m long essentially invisible tendrils that kill you in 2 minutes through the sheer shock of the pain) are swarming, does not mean you have to run an ad that says ‘you’ll hate the holiday’. Some people might love it. What if you just wanted to go somewhere and drink yourself to death watching TV and eating chips in an air-conditioned room? That’s the sort of holiday I could relate to sometimes…

They insult the intelligence of the public

We are not stupid. We either know that Lizard Island in the summer time is not a good idea, or we find out about it by talking to our peers ‘Hey, I was thinking of going up north to Lizard Island for a few nights next January – what do you reckon?’ You might twitter to 200 of your closest friends. 199 of them would probably send back a tweet saying ‘Box jellyfish, crocs and 40 degrees. Do it in July’ or similar. We don’t need to be nannied all the time. We can make up our own minds, Mr ACCC.

They make no real difference to the behavior of punters

Disclaimers are so jumbled up and so boring the public doesn’t listen to them. I’m prepared to bet the public hate them so much they mentally turn off, so it wouldn’t matter what you put into them, they are simply not being heard. They are not being comprehended. They just waft over our heads like goobeldegook.

They weaken the brand significantly

We spend years and millions of dollars building up the credibility of brands. Making the decision to grab the Omo instead of the house-brand as I waltz down the aisle, absolutely automatic. Making the actual cost of the sale lower by burning into the sub-concious of the punter the compelling reasons why they should grab that Omo instead of the alternative. That’s our business as marketers. Efficiency of sale. Disclaimers mess all that up. They ruin our brand’s credibility to no useful effect, except that of brand destruction. If you’ve just heard a disclaimer about Omo’s competition at the end of the Omo ad as you get out of the car on your way to do the grocery shopping, it may slow you down a tad. You might not buy that Omo. You might stand there, hesitating for 10 seconds wondering if the house brand will work as well. Holding up all the other Mum’s and Dad’s charging along Coles’s cleaning product’s aisle on a Saturday morning. Disaster.

They line the pockets of lawyers

I have a lot of lawyers in my family, so I better be careful here. Oh, fuck it. None of them speak to me at Christmas drinks anyway. The only people who truly benefit from disclaimers are the idiot lawyers who either negotiate them, write them, approve them or insist on slapping them on the ends of otherwise decent ads. Lining their pockets along the way. If they were decent lawyers they’d be doing something more useful like defending the freedoms of Australian marketing writers, keeping peadophiles away from schools, druggies off our roads and scum-bags out of our corporate boardrooms.

They are beginning to make the ACCC a laughing stock

I wouldn’t be writing this if I didn’t feel I have the vast majority of marketing land on my side. The fact that the Siren Council’s radio ad of the year for 2008 (Written by Paul Readon and Julian Schrieber of Clemenger BBDO, Melbourne) was for a RACV ad that was almost totally a disclaimer, run as a joke, should also tell you something; it’s gone too far.

They are usually completely unnecessary

There is a disclaimer on the back of quite a few Christmas Cards warning the reader that kids under 3 could cut themselves on the sharp corners….. I ask you?

They waste valuable media time

Let’s do a few rubbery sums here. Let’s assume that every 3rd ad has a disclaimer on it. That there’s about 15 ads an hour, every day of the week and the average ad, when we take into account TV, radio etc. is about say $300 a pop, over say 15 stations (10 radio/5 TV) in the average city. (This is ignoring outdoor, DM, web site banners and all the other media I could include here.) Just given the radio/TV scenario, we go 15 stations x 5 cities x $300 x 5 ads an hour (1/3), x 24 hours, x 365 days a year. That gives us $985.5 million. Assuming the ads run for 30 seconds and the disclaimer runs for 5 seconds (1/6), that means the media time just on TV and radio is about $164.2 million WASTED. I’m guessing if you included outdoor, web, newspapers etc. you’d be up to $300 million or more.

They don’t bloody work

When did a disclaimer actually put off a dumb punter? I’m open to reading the deep, statistically valid, scientific analysis that the ACCC has done on this vexing issue and I look forward to receiving their 150 page report on it next Monday morning. But what if they’ve never thought to test if they have any effect? What would you think of them then, dear reader? Please advise us ACCC. Have you done said analysis before wasting $300 million a year of our media money?

Formal Apology

As the ancient Greeks used to say ‘They always kill the messenger’. So in the tradition of other naughty organizations, who have flaunted the ACCC’s rules, here’s my formal, written apology.

“I’m sorry for being nasty. The dudes at ACCC work like blue-heelers chasing wild cattle. They don’t deserve my wrath. They are simply trying to keep bucking, swerving corporate Australia in line. Frankly, the blame lies with the external legal profession suffocating their best intentions in over-blown court actions on behalf of usually obviously miss-behaving corporate clients. So I’m sorry if I’ve upset you ACCC guys sitting around the office coffee table reading this article. Please don’t beat me to a pulp with your big legal gavel. How about we all go to lunch, my shout?”

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