Legal+Creative | Toerek Law

Disclaimers are everywhere in marketing—on product packaging, websites, and even influencer posts. Your marketing agency may have written a fair share of them in its client work. But not all disclaimers serve the same purpose. Understanding the different types can help protect your client’s brand while ensuring transparency with consumers. Here are some key disclaimers to know: ? Legal Disclaimers – Used to comply with regulations (e.g., “Void where prohibited.”) ? Product & Performance Disclaimers – Clarify product expectations (e.g., “Batteries not included.”) ? Affiliate/Endorsement Disclaimers – Required when influencers or affiliates promote a product (e.g., “#Ad” or “This post contains affiliate links.”) ? Medical & Health Disclaimers – Prevent misleading claims in health-related advertising (e.g., “Consult your doctor before use.”) ? Earnings & Financial Disclaimers – Common in finance and investment ads (e.g., “Past performance is not indicative of future results.”) ? Sweepstakes & Contest Disclaimers – Define rules and eligibility (e.g., “No purchase necessary. Open to U.S. residents 18+.”) ? Comparative Advertising Disclaimers – Explain the basis of product comparisons (e.g., “Compared to leading brand based on a 2023 consumer study.”) ? Environmental Disclaimers – Prevent “greenwashing” (e.g., “Made with 30% recycled materials.”) No matter the client industry, disclaimers must be clear, conspicuous, and truthful to avoid misleading consumers. And the more extraordinary or specific the claim, the higher the likelihood a disclaimer is needed. Here’s a quick checklist for your agency’s next client campaign ??????

Is your role as CEO in your agency limiting your business potential? Many agency leaders struggle with distinguishing between working in the business versus working on the business, which can stifle growth and innovation. This week's episode of The Innovative Agency Podcast features Brad Farris, Principal of Anchor Advisors, Ltd. Brad shares his expertise on focusing efforts where it matters most, understanding the owner vs. CEO dynamics, and why sometimes, the best action is stepping back. Discover practical advice on redefining your role and maximizing your impact as both owner and CEO. Click the link in the first comment to listen.

I’ve spent some time recently sharing compliance tips here for marketing agencies that are creating campaigns for brand clients. One strategy your agency should not rely on is using disclaimers or fine print to compensate for unclear or unsubstantiated claims. While disclaimers are often necessary, they cannot undo the damage caused by misleading or undocumented advertising claims. When are disclaimers necessary? Disclaimers play a crucial role in many advertising scenarios, including: -Customer Reviews – If a reviewer received compensation (e.g., a prize, discount, or free product), a disclaimer must disclose this relationship. -Product Results Claims – If an ad highlights exceptional or above-average results, a disclaimer should clarify what a typical consumer can realistically expect. -Comparative Advertising – When comparing products or services, disclaimers should specify the conditions under which the comparison was conducted. -Disclaimers should function to clarify, qualify, or provide additional context for ad claims. That’s their proper role. To be effective, they must be: -Clear and Conspicuous – Easily visible, using a readable font, contrasting color, and not buried in fine print. -Placed Near the Claim – Positioned close to the statement they modify so consumers don’t have to search for them. -Simple and Understandable – Written in plain language to prevent confusion. -Non-Contradictory – A disclaimer cannot override or contradict the primary claim of an ad. -Sufficiently Displayed – In video or audio ads, disclaimers must remain visible or audible long enough for consumers to notice and comprehend them. Whether and when a disclosure or disclaimer are needed in your marketing claims is a highly case-specific decision. The safest guideline for your agency is that the more extraordinary the claim, the higher the likelihood a disclaimer will be needed. Despite their utility, remember that no amount of small print will negate the impact of a claim that doesn’t appear on its face to be clear and truthful.

What’s the secret to your marketing agency’s creative team crafting compelling copy that is compliant with ad and marketing rules?? Language choices. Compliance is all about using honest, transparent language and avoiding common exaggerations or vagueness that can land your brand client in trouble. Here’s what you should use instead of some of the most problematic words: ? Instead of “Free” – Say "No cost with conditions" or "Free trial" ? Instead of “Guaranteed” – Try "Refund available" or "Satisfaction guaranteed (with terms)" ? Instead of “Instant” – Use "Quick results in X time" or "See improvements in X days" ? Instead of “Best” – Go with "Top-rated by customers" or "Highly recommended by experts" ? Instead of “Risk-free” – Use "Money-back guarantee" or "Trial period" When you’re clear about the terms, conditions, and what your customer can expect, you’re not just staying FTC-compliant—you’re also building trust and credibility for your brand client with its audience. Are your ads FTC-compliant? Make sure your language works for you, not against you!

As your marketing agency creates advertising or promotional content for a brand, there are hundreds of decisions made along the way about language. What to say, and how to say it. It should be no surprise that your choices about words and phrasing matter to the Federal Trade Commission, a lot, for compliance purposes. The FTC’s rules on language require that advertising and marketing materials are clear, truthful, and easily understandable to protect consumers from misleading or deceptive claims. Agencies creating this work are required to use plain language and disclose all material information, especially when making claims about a brand’s products or services. What are some of the FTC’s Key Language Rules? ? Use Plain Language – The FTC promotes the use of plain language in all consumer communications to ensure information is easily understood. ? Truthful Claims Only – Advertisements must be truthful and not misleading, meaning claims made about a product must be supported by evidence. ? Make Disclosures Clear – When necessary disclosures are required, they must be clear, conspicuous, and presented in a way that consumers can easily see and understand. ? Be Transparent with “Free” Claims – When using the term "free" in advertising, all conditions and limitations must be clearly stated. ? Follow Endorsement Guidelines – Influencers and other endorsers must disclose any material connections they have with a brand when recommending products. Why does this matter? Clear communication that avoids confusing or misleading a brand’s audience isn’t just a best practice—it’s a legal requirement. And your agency is in the driver’s seat to make sure it happens. Failing to comply with FTC regulations can lead to hefty fines, reputational damage, and loss of consumer trust. By prioritizing transparency and accuracy in marketing, agencies not only help brands stay compliant but also partner with them to build stronger, more credible relationships with their audience. Want to keep your client’s advertising legally sound? Audit the brand’s marketing materials regularly, double-check all claims are substantiated, and educate your agency’s creative team on FTC compliance. To help you stay compliant, download the Clear Language Checklist (link in the comments) to ensure your ads, emails, and social media promotions are clear, truthful, and FTC-approved. What’s your biggest challenge when it comes to FTC compliance??

Is your agency leveraging video content to its fullest potential? Video has rapidly transformed from a luxury of elite brands to a critical marketing tool for businesses and brands of all sizes. The challenge? Ensuring accessibility and effectiveness amidst ever-evolving trends. Hope Horner, Founder and CEO of Lemonlight, joins The Innovative Agency Podcast this week to discuss what agencies need to know about the democratization of video and its strategic importance. Gain insights into maximizing budgets, integrating AI, and forming successful partnerships. Click the link in the first comment to listen.

How do you keep your agency’s content authentic and credible in an era of AI and influencer saturation? As digital noise grows, consumers are more skeptical than ever—questioning what’s real and what’s just another sales tactic. To build real trust, agencies need to rethink how they connect with their audiences. In this episode of The Innovative Agency Podcast, Leah Messina, Founder of Sinuate Media, joins to unpack the shifting landscape of user-generated content. Leah shares powerful insights on how agencies can harness this content to foster genuine connections and reinforce brand credibility. Tune in to hear Leah’s expert strategies on using user-generated content effectively—without sacrificing trust. Click the link in the first comment to listen.

Is your marketing agency including performance or feature claims in client marketing copy? The FTC has strict rules to prevent deceptive advertising and non-compliance can lead to serious penalties. FTC requires several minimum standards of compliance for advertising claims. The claim copy and images must be or have : ?? Truthful & Not Misleading – Avoid exaggerations or unsubstantiated promises. ?? Backed by Evidence – Have solid proof (data, studies, expert opinions) to support claim. ?? Clear & Not Deceptive – Don’t hide key details or use misleading wording. ?? Comparisons That Are Fair – If you compare to competitors, ensure it’s accurate and verifiable. ?? Disclosures That Are Clear – If needed, include disclaimers that consumers can understand. Is Your Service Claim FTC Compliant? Want to double-check your service claims? We’ve created this FTC Compliance Checklist that will help you determine if your service claims follow FTC guidelines—download it now by clicking the link in the comments!

When your marketing agency is creating any campaign that includes claims about the product or service it promotes, who’s responsible for those claims? The brand client? Your agency? Would it surprise you if the answer is, possibly all of the above? When making claims, honesty and transparency aren’t just good business practices—they’re legal requirements under FTC regulations. Any claim you make must meet the minimum standards of being truthful, substantiated, and not misleading. And everyone involved in the “chain” of publishing the claims can be responsible for them. If you promote a service, your claims must comply with these key principles: -Truthful & Not Misleading -Substantiation Required for Objective Claims? -Clear & Conspicuous Disclosures -No False or Deceptive Omissions -Comparative Claims Must Be Fair & Accurate -Endorsements & Testimonials Must Be Genuine Violating FTC rules can result in fines, lawsuits, and damage to your business reputation. It can also cost your agency lost revenue when the client relationship sours over a compliance issue. How does your agency both stay compliant and reduce risk for the claims that appear in marketing and advertising? Three simple steps: 1. Ask a lot of questions about the product and service claims your client wants to make. 2. Require the client brand to approve all claims and copy before they go live. 3. Include liability and indemnification language in your Agency contracts with clients THE BOTTOM LINE:? Staying compliant helps preserve both your agency and your client’s brand, while meeting the FTC’s goal of protecting consumers.

Ever wondered if starting a podcast is the right move for your agency, or if guest interviews might drive better results? Many agencies grapple with these questions as they explore podcasting’s potential for growth and client engagement. In this episode, Tom Schwab, CEO of Interview Valet, dives into podcast strategies, highlighting when to host your own show and when to leverage guest interview marketing. Learn how to maximize your podcasting efforts with thoughtful strategies and how innovative AI tools like ChatGPT are being integrated into this space. Discover how to control your crowd, conversation, and conversions effectively. Click the link in the first comment to listen.