Advertising Attorneys, These Ads Are for You

Working at TINA.org, I’ve learned not to assume anything. But I’d be willing to wager a “free” meal kit or perhaps even a “clinically proven” pillow that, unless you are an advertising attorney or a loyal reader of this site (and if you are, thank you for your readership), you probably haven’t heard of the National Advertising Division, much less follow the activities of the self-regulatory group. Which is a shame, really, because if you were attuned to the comings and goings of NAD, you might’ve known the full context of the above Apartments.com ad that debuted on national television in March. Allow me to fill you in.

Last year, Apartments.com agreed to drop the tag line “the most popular place to find a place” after NAD found that while the evidence the company offered in support of the claim showed that it had the most unique visitors among real estate listing sites, it was not a “good fit” for the “most popular” claim. Apartments.com fought to keep the slogan, which had been challenged, among other advertising claims, by Zillow, but lost an appeal to the National Advertising Review Board, another entity in the ad industry’s system of self-regulation, which affirmed the NAD decision recommending that the claim be discontinued. Oh, the drama!

Was Apartments.com sour from the experience, which cost the company at least $27,000 (not counting attorneys’ fees)? I’ll let the ad copy in the new commercial answer that:

Brad Bellflower, the fictional founder of Apartments.com, played by Jeff Goldblum: “When you’re a leader, the competition is always hoping that you’re going to slip up. So, these suits are here to make sure that anything that I say is legally indisputable like ‘Apartments.com has the widest variety of variety,’ ‘Apartments.com was the reason that apartments were invented,’ ‘Heck, we got more spaces than space.’ Suit: “That’s entirely incalculable.” Bellflower: “Incalculable? Oh, I think that’s legalese for true. (Bellflower chuckles.) Apartments.com: the place to find a place.”

See what they did there? By removing “most popular” from the tag line, Apartments.com went from using an objectively provable claim to, well, a bit of nonsense. The actual legal term for the tactic, known to all advertising attorneys, is puffery.

While it may be unusual to have so many “suits” or actors posing as legal experts in an ad, it’s not the first time an ad has acknowledged advertising law.

For example, marketers aren’t supposed to bury important information in the fine print. So IKEA made sure that everyone knew the giant hot dog pictured in a banner in its cafeteria was an (obvious) exaggeration with the large type disclaimer “not actual size.”

And seeming to acknowledge that the FDA considers hangover relief claims to be disease-treatment claims requiring the agency’s approval, McDonald’s said in an ad that debuted in January that, “For legal reasons we can’t say an Egg McMuffin is a hangover cure,” though it followed that up with, “but it probably wouldn’t hurt to have one delivered.”