Introduction

Welcome to the Simplifying Legal podcast, brought to you by Businessese. I’m your host, Danielle Liss.

Many years ago, someone told me I was the least lawyer-y lawyer she’d ever met because I helped make legal easier to understand. To this day, it’s one of the best compliments I’ve received in my professional life.

If you’ve ever felt legal was too scary, too overwhelming, too complicated, or just plain incomprehensible, you’re not alone. The Simplifying Legal podcast was created to help. 

In each episode, we’ll do a deep dive into a legal topic and give you concrete next steps so you can apply it to your business. 

My goal is for you to walk away from each episode thinking, oh, that was easier than I thought it would be.

Let’s get started. 

Episode Content

Hey there, I’m Danielle. Welcome to Episode 49 of Simplifying Legal for Small Business Owners. Today, I’m talking about legal marketing review.

Disclaimer: As always, before we get into today’s topic, a quick disclaimer. This podcast is meant to provide you with legal information only. It’s not legal advice and doesn’t create any type of attorney-client relationship between us. Please don’t take any action without consulting your lawyer first. 

What Is Legal Marketing Review? 

I want to get started with an overview of how I’m defining legal marketing review, because, I promise, this isn’t an episode about marketing for law firms. 

In the last handful of episodes, I’ve talked a lot about different aspects of marketing and how they can be impacted by legal. Remember, all of your business’s marketing is a type of advertising, and it should all be considered from a legal perspective. 

I’m defining legal marketing review as the process of analyzing your business’s marketing content to ensure that it’s legally compliant. Just like you dive into your marketing so that it makes you stand out from your competitors and helps you sell your products or services, you want to make sure that it’s also covering you legally.

I’m sure many of you have legal marketing questions so I’m going to use myself as an example for a minute. When I redid my website last summer, I worked with my copywriters at Scoop Studios to ensure that everything was in alignment with my core values. One of my core values is valuing diversity and inclusion, so we went through my copy to ensure that my site didn’t have anything that included things like ableist language since that was deeply important to me. 

I want you to think of legal marketing review in a similar way. It’s a process to review that your content says what you want from a legal perspective. 

Marketers vs. Lawyers: Who Should Win? 

When I worked in-house, I did a lot of legal marketing reviews. Now, I do it for a number of clients. I usually joke that it sometimes feels like it turns into a battle between me and the marketers. The marketers want to show very specific results and say that the disclosures will negatively impact conversion rates or sales. 

I’m going to be honest – legal needs to win the battle. You need to make sure that your marketing is compliant. But, I don’t think that means that marketing necessarily has to lose. I view it as a compromise and it’s about finding the right way to say things. 

And please don’t view disclosures as a negative thing. Disclosures are there to make sure that your potential customers can properly evaluate your marketing. Look at them as a way to give more information, not to skewer your sales. 

In 2013, when the .com disclosures guide was released by the FTC, many bloggers thought that no one would ever read sponsored content if it had to be disclosed the way the FTC requested. Well, we’re 8 years out and sponsored content is still going strong. It didn’t make the viewers stop reading. It just provided more information so they understood the relationship. 

Who Needs to Conduct Legal Marketing Review? 

Now, let’s talk about who needs to conduct a legal marketing review. 

Legal marketing review is extremely common in big companies. Especially those who regularly engage in paid advertising. If you see a big company that has a commercial on tv, I am willing to bet that they’ve had their lawyers poring over the content to look at it from all angles. 

Unfortunately, I think legal marketing review is less common for smaller businesses. I hope it becomes more a common practice, especially for online business owners. While we want to make sure that the copy of the marketing coverts, we also want to make sure it does so in a way that is legally compliant. 

So my belief is that all companies should consider some level of legal marketing review. Your industry and content may drive you exactly how much review your business needs. 

Here’s a legal marketing review example, let’s say you are an online business and you offer virtual tutoring services. You may do a periodic review of your marketing to ensure that your testimonials are FTC compliant and that you aren’t making any false claims. A lot of your content might be fairly consistent. Once you know what to say and what to avoid, the process becomes easier. You might not regularly need extensive legal marketing review unless you decide to launch a new product or service. 

For those in the wellness space, for example, it can be harder. There are so many potential areas to consider, from testimonials with atypical results to the very tricky world of health claims. These are often the types of businesses that will want to engage in more frequent legal marketing reviews. 

One group that I think has become very skilled in doing legal marketing review is bloggers and influencers. They’ve had to learn the ins and outs of FTC rules for sponsored content and then how to preserve their own unique voices along with the required talking points of the brand. Many brands are giving guides as to what claims are permitted or not and it takes a lot to learn how to then write engaging content around that. So, bloggers, a big round of applause to you for the work you’ve done. 

What Happens during Legal Marketing Review? 

Now, let’s talk about what happens in legal marketing review. 

Legal marketing review can take place at any time. I’ve had clients discuss how they should approach certain claims before a word is drafted in their marketing. I’ve also had clients who are using marketing that’s already been out in the world, but as they’ve learned more about compliance, they want to have it reviewed. 

Most frequently, the review happens somewhere in the middle. Usually, once the copywriters have something drafted, then you start to look through the content. So what should you consider in your marketing review? 

For most small businesses, you will want to look at the claims and testimonials. 

I provided an overview of some of the most common areas of marketing that are impacted by the FTC in Episode 47. I think that’s a great place to start if you want more information.

Legal Marketing Review Checklist

First, if you use testimonials, consider: 

1. Does it accurately describe their experience? 
2. Do you have permission to use it in the way that you are using it? 
3. Is the testimonial about the product or service that you are promoting? 
4. Does it need any type of disclosures for atypical results? 
5. If it’s a testimonial from an expert, do they have the appropriate qualifications as an expert and are they giving their opinion based on that expertise? 

Next, look at your claims. Remember, you need to consider explicit and implicit claims. 

1. Are the claims truthful and not misleading? 
2. Do you have evidence to substantiate the claim? In other words, do you have a reasonable basis for the claim? 
3. If you use claims, are any disclosures needed? 

Exercise particular care if you are in the health or wellness space. Health claims are heavily scrutinized. Remember, you need proof. 

If you are comparing your company to another brand, this type of comparative advertising needs to be truthful and it shouldn’t be disparaging to the other company. 

And, very importantly, provide clear and conspicuous disclosure when required. Disclosure is needed to disclose material relationships for sponsored content or endorsements. It may also be to provide additional information regarding testimonials or claims. 

Marketing Review Considerations from an Attorney

Now, I want to give you a little behind-the-scenes look at what happens when I do a legal marketing review. 

1. First, I usually ask the client to give me an overview. If it isn’t a company I’ve worked with as outside in-house counsel, I want to know about the company and I want to know more about the products or services included in the content I’m reviewing. 
2. Next, I will do a read-through to get a sense of the overall content. I don’t usually start with revisions until I have gotten through it at least once. If there are any clarifying questions for the client, I’ll ask those before I move forward.
3. Then, I start identifying claims. The documents are often filled with comments like, is this true and then a request for proof. 
4. I look closely at testimonials and the claims that they may contain. Because, as I’ve discussed in other episodes, a testimonial can’t make a claim that the company can’t make. 
5. Then, once I get feedback from the client, especially on the substantiation of their claims, I can start to make revisions. 
6. This might mean changes to certain copy written that they’ve included or it might be the addition of disclosures. 
7. And, of course, there are times when I get push back. That’s when I can give an overview of what the problem is and we can brainstorm ways to fix it. 
8. Depending on the content, I have sometimes worked with the company and their creative team to find the best way to say things. I promise I’m not there to try and limit sales. I want the business to succeed, but I also want them to do so in a way that’s legal. And, honestly, if someone is seeking out my services, they usually want the same things. 

If the client is in a business that might be more highly scrutinized, then we might be diving into some other pieces. I work with a lot of clients in the health and wellness space, so we are particularly careful about claims. I’ve worked closely with some companies and their scholarly researchers who are fact-checking all of the claims with appropriate studies. 

Should You DIY Legal Marketing Review? 

Before I wrap up, I want to address a question I hear a lot when people first consider legal marketing review. Is this something you can do yourself? You can probably guess that my answer is the usual: it depends. 

Honestly, legal marketing review doesn’t have to be overwhelming. Depending on the type of business you have and the marketing you employ, you may be comfortable taking a DIY approach. 

But, I want to stress that if this is something you find overwhelming or confusing, talk to your lawyer to see if they can do a review for you. If they don’t have experience conducting legal marketing reviews, I recommend finding a lawyer who has experience in the area.

There are some areas that I think are important to consider DIY vs. hiring a lawyer. 

First, if you work in a highly regulated industry, like banking, for example, you may want to consider working with a lawyer who knows your industry and the marketing rules. 

Next, if you market to children, please talk to an attorney. There are many laws related to marketing to children and it is an extremely scrutinized area. Unless you are extremely familiar with the regulations, I don’t recommend trying to DIY this. 

There are also a number of industries that may have special rules, like alcohol, tobacco, cannabis, or pharmaceuticals. If you aren’t sure what to include, this is something I definitely recommend discussing with your lawyer. 

If, however, you are comfortable evaluating your marketing, you may be fine taking a DIY approach. At any point, if there is something you aren’t sure about, that’s when it is time to reach out to a lawyer. 

Action Steps

This wraps up my discussion of legal marketing review. Here are today’s action steps:  

1. Have you ever reviewed your marketing through a legal lens? If not, are there any areas that concern you?  If you have concerns, make updates as needed. 
2. If you aren’t someone who likes to DIY this type of review, consider hiring a lawyer to handle any marketing review. 
3. If you are in a highly regulated industry or you have a new type of marketing that you aren’t familiar with, even if you’d DIY’d in the past, this may be an ideal time to talk to a lawyer.
4. Last, as always, if you have questions about legal marketing review, please talk to your lawyer. I regularly perform legal marketing reviews for clients at my law firm, Liss Legal. If you’d like to see if we’d be a good fit to work together, please reach out through LissLegal.com. 

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Thanks for listening and we’ll continue Simplifying Legal on next week’s episode.