Advertising Laws and Regulations
(Prepared August 2014)
Index
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False Advertising
Federal and State regulation of:
Internet gambling
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Game promotions
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Securities
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Sellers of travel
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Adoptions
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Surrogates/Donors
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Professional ads
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Contractors
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Physicians
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Other businesses
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Employers
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Gold Buyers
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Cigarettes
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Alcohol
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Pharmacies
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Currency
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Reference to taxes
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Adult themed
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Land auctions
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Firearms
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Attorney ads
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Principles of Copyright Law Applicable to Newspaper Advertisements
Introduction
This memorandum discusses federal and state advertising laws and regulations that are
applicable to some of the most common type of ads published by newspapers. It is not
intended to be an exhaustive list. Also discussed is the law surrounding copyright
protection of ad copy published in newspapers.
False Advertisements
What claims or representation would indicate a false or misleading
advertisement?
A false advertisement is defined as “an advertisement, other than labeling, which
is misleading in a material respect.” (see 15 U.S. C. section 5(a)(1); 501.204, F.S.) In
various cases, the FTC has held that the following claims or statements can lead to a
determination of false or misleading advertising:
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False oral or written representations,
Misleading price claims,
Sales of hazardous or systematically defective products or services without
adequate disclosure,
Failure to disclose information on pyramid schemes,
Use of bait and switch techniques
Failure to perform promised services
Failure to meet warranty obligations
Is a newspaper liable for printing a false or misleading advertisement?
Yes. Florida law treats a lawsuit based on a publication of allegedly false or
libelous material as a libel action. Thus, newspapers may be sued for libel for the
publication of any advertisement found to be defamatory.
Can a newspaper reject potentially libelous advertising?
Newspapers may reject an advertisement, even where the advertisement is proper
and the fee has been paid. In fact, newspapers and other periodicals may refuse to carry
advertising for any reason or for no reason at all. 58 Am. Jur. Newspapers, Periodicals,
and Press Association, section 14. This ability is based on three distinct rights:
1) A business’s right to refuse to deal with anyone, unless the refusal is based on
illegal discrimination or is part of an illegal restraint of trade
2) The First Amendment right to refrain from advertising what one does not wish to
say;
3) The fact that a publisher’s refusal is not “state action” to which the First
Amendment applies.
Federal and State Regulation of:
Internet Gambling
General
Legality of online gambling is a cloudy and complicated issue. Initially DOJ
considered all such gambling illegal and that advertising such operations amounts to
aiding and abetting such illegal activity, and is itself a crime. At least one federal district
court (Casino City) agreed with DOJ’s position. However, in 2011 DOJ changed its view
so that it now interprets the Federal Wiretap Act prohibition to cover only online sports
betting with some arguable exceptions (see below). This interpretation has apparently
prompted states (e.g., Nevada, Delaware) to legalize gaming like online slot machine play
and casino games (e.g., blackjack and poker) limited to players within the state's borders
(verified using geo-location software). However, the government still takes the position
that other laws make online commercial gambling across state and international borders a
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crime. With respect to Florida, online play has not been legalized, and, as such,
advertising or promotion of such activity would entail liability or enforcement risks.
“Play” Poker Gambling Sites
A recent development has been the "dot net" play betting ads with virtually the
same name as their real money card room, except that the website address ends with "dot
net" rather than "dot com." For example, BetUS.net is a purely informational and playfor-free website. The site offers information about gambling, obtaining free sports picks
and bet on real games with play money.
Most media outlets have begun accepting ads for these dotnet sites.
DOJ Advice: Informal advice from DOJ that implies the Department's approval of dotnet
advertising under certain circumstances.
1. There can be no web links from an online free-to-play poker website (i.e.
“poker.nets”) to a online pay-to-play poker website (i.e. “poker.com”) website
2. There must be an on-screen disclaimer on the home page of the free-to-play
poker website that states that this site is purely educational.
Can request advertiser to send an affidavit stating that their .net site does not have
any links or offers to encourage people to sign up for real money or .com sites.
Fantasy Football
The 2006 Unlawful Internet Gambling Enforcement Act designed mainly to stop
internet poker included a carve-out for fantasy football. For several years there have been
such sites that feature season long games that require skill to draft and trade players.
Recently, however, some fantasy sites have featured weekly or daily cash reward games
that look much more like gambling. Until the law is clarified or an enforcement action is
taken, it is unclear if such sites would be considered illegal gambling.
Game Promotions
Promotions generally fit into one of three categories: lotteries (a prize drawing
where people must pay money to buy a chance to win); sweepstakes/raffles (prize
giveaways where the winners are chosen by the luck of the draw; and contests (choosing
the winner based on some merit --best photo, most votes on a video, best receptive).
These are discussed further below.
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Lotteries
Games promotions are specifically governed by various state and federal laws that
prohibit unlawful lotteries. A lottery is defined as a promotion that contains the following
three elements: chance, prize and consideration. To avoid structuring an illegal lottery, a
promoter must remove one of the elements—which is typically either chance or
consideration as most promoters want to award a prize.
Monetary consideration is where the consumer must expend something of
tangible value to enter or play (e.g., purchasing a product or the payment of an entry fee).
Nonmonetary consideration is where the consumer must expend substantial time or effort
that will somehow benefit the sponsor in some material way like watching a sales
presentation and/or completing a detailed survey. Nonmonetary consideration also may
be present when a consumer is required to divulge sensitive information or waive a legal
right, for example, by agreeing to receive telemarketing calls even if the consumer is
currently on a “do not call” registry.
If consideration is not removed, then, sometimes, depending on the promotion, a
promoter might use a no-purchase alternate method of entry but this can be tricky. The no
purchase alternative must be structured such that the chance of winning is the same as
that under the payment alternative and the non-payment alternative is not significantly
more burdensome than paying to enter (for example, while requiring a local store visit is
generally not treated as “consideration,” requiring an in-person visit where there is only
one location within a 100 mile radius would be potentially problematic. In addition, the
alternate method must be “universally available” to the people who are in the general
entry pool governed by the sweepstakes.
If the promotion requires the expenditure of money, i.e., consideration, like the
purchase of the sponsor’s product or requiring payment to enter, promoters may try to
structure the promotion as a contest—a game of skill—in which the element of chance is
removed. Here, care is required about whether it is really a game of skill and courts apply
different tests in making this determination. An example of a skill contest normally
would be a contest that includes judging or competition of entries based on objective
criteria, for example, creativity, relevance to theme, etc., in an essay contest. In a skill
contest, the winner is chosen according to guidelines disclosed in advance to the entrants.
Raffles/Sweepstakes
Raffles
Drawings by chance like raffles are generally prohibited by private operators
although they are allowed for non-profits in some circumstances.
Mentioning “raffles” in an ad could be construed as a “drawing by chance,” which
could be construed as a lottery. As noted above, it will be an illegal lottery only if there
is prize, chance and consideration.
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Sometime it is not immediately apparent if consideration is present. Consideration
typically takes the form of a purchase or entry fee requirement but it can also take the
form of a cover charge to enter the facility, parking fees, fees to play the games, or, of
course, actual monetary wagers. There may be other items that amount to consideration.
A second issue that is potentially implicated to raffle promotions is the
applicability of Florida’s charitable solicitations regulatory scheme. Depending on how
these solicitations are ultimately made, and how/what charities are benefited from the
promotion, the sponsor may be required to register as a “commercial co-venturer” with
Florida, which also requires certain disclosure and record-keeping requirements, as well
as certain prohibitions.
Cell phone card sweepstakes
The following ad promotes a sweepstakes contest which provides entries to those
purchasing phone cards:
Win Sweepstakes We Sell Phone Cards - 250 Additional Free Sweepstakes
Entries with any phone card purchase of $20 or more.
**Sweepstake points have no monetary value and can only be used to play
("validate") the sweepstakes game on a validation terminal. Sweepstakes entries
are used in conjunction with our sales promotions.
Absent an alternate method of entry with "equal dignity," which is not apparent
from the ad copy above, this sweepstakes would likely violate the laws against lotteries.
In addition, depending on the machines being used and the prize made available, it also
may involve the use of illegal "gambling devices" and possibly a "gambling house."
There are two Florida AGOs addressing these types of promotions under Florida
law. These opinions involved companies that operated machines that dispensed long
distance phone cards which also awarded sweepstakes points for each dollar spent on the
phone cards. The sweepstakes points could then be instantly redeemed for cash (in the
earlier case) or (in the latter case) redeemed to play sweepstakes games online with
winners awarded cash. As you can see, the AG found these types of activities to
constitute illegal lotteries and illegal gambling devices.
Contests
“Last man standing football games” contests
In these contests, players enter and pick a sports team to win, say the Jaguars. If
the Jaguars win that week, the contestant remains alive and will pick again next week, but
player can't pick the Jaguars again the rest of the season. If player loses or ties, he or she
is eliminated from the contest. Players keep going through the season until only one (or
winner) remains standing (i.e. - has picked a winning team every week of the season).
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There are all kinds of contingencies, etc., for ties and things like that (hence the lengthy
set of rules).
There are no "random" winners; players have to “earn” their way. The grand prize
is a recliner and flat-screen TV from a local furniture story and a Super Bowl party of
pizza, wings, etc. from a local restaurant, about a $1,500 package. No second place, just a
winner. Is this as a lottery?
Again, Florida's gambling laws primarily concern games of chance rather than
contests of skill. If the skill argument is rejected, and it is viewed as a game of chance,
and contestants give “consideration” (e.g., entry fee) for a chance to win a prize, then it
will likely be deemed an illegal lottery. If there is no consideration, then it falls more
under the umbrella of a sweepstakes drawing. In this case, the players will argue that the
winner of last man standing game is determined through skill, not chance. However, that
argument will be unavailing in Florida due to section 849.14, which makes it unlawful to
bet “upon the result of any trial or contest of skill, speed or power or endurance of human
or beast.” Further, the Florida Attorney General has issued an opinion that says fantasy
football-similar to last man standing contests--is “illegal” gambling. (No. 91-3, Jan. 8,
1991). In light of this background, it would be advisable not to run this ad especially if
there is an entry fee (unclear from question).
Bingo
Bingo can be conducted by a nonprofit as a charitable fund raising event or if it’s
not a fundraiser then the non-profit can still conduct bingo if it returns all the proceeds to
the players in the form of prizes. There is a fairly long laundry list of dos and don’ts in
the statute that the nonprofit must comply with. For example, there are dollar limits on
jackpots and the number that can be won.
Clarify if a nonprofit conducts the bingo event and if the sponsor is a nonprofit,
then the ad should not run.
Charitable Promotions
Keep in mind promotions that benefit charitable organizations like the United
Way are regulated, not only as games of chance, but also under Florida’s detailed
regulations on charitable solicitations. Florida law, in most cases, prohibits drawings like
raffles for the distribution of prizes by chance, when consideration is an element of the
promotion, even if the purpose is to benefit a non-profit organization. However, there are
very narrow exceptions, which only apply to certain nonprofit organizations and are
spelled under the fairly detailed criteria contained in section 849.09 and Chapter 496 of
the Florida Statutes. Although the newspaper is not a nonprofit entity, these standards
come into play when it advertises or otherwise assists the organization in promoting a
game of chance.
Registering Game Promotions in Florida
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Once the promoter determines the promotion is legal, the next step is to see if any
registration is required. In Florida, the Department of Agriculture and Consumer
Services, Division of Consumer Services regulates game promotions offering prizes
totaling more than $5,000. Section 849.094, F.S. For such promotions, the promoter
must file with the Division 7 days prior to commencement. Even game promotions based
in other states must be filed if they are conducted in Florida and/or are open to Florida
residents and have prizes valued at more than $5,000.
In addition, a surety bond or statement of trust is required from the operator
unless they have conducted game promotions in Florida for at least 5 consecutive years.
Game Promotion Rules
The material terms of the rules must be published in all advertising copy.
Even small scale promotions should be accompanied by a set of official rules.
At a minimum, however, official rules should include:
 A statement that no purchase is necessary;
 Relevant dates (starting date, entry deadline, date of drawing);
 Description of how to enter (including the no purchase or alternative
method of entry);
 Eligibility limits (minimum age, residency requirements, affiliation with
sponsor, etc.);
 Prize description, approximate retail value and any restrictions;
 Odds of winning; and
 Identity of the sponsor.
See Fla. Stats. 849.094
Other Caution Areas
Official rules can be published in abbreviated fashion if the full version can be
accessed elsewhere like on the internet. Different rules apply to activities of nonprofit
organizations.
Watch out for misleading advertising of contest regarding prizes being awarded
(base model provided versus “top of the line” product in ad) or where the ad says
purchase is necessary or “preferred’ even where official rules are clear no consideration
required.
Although it’s unlikely the newspaper that merely runs such an ad would be
responsible as an operator, the customer could face fines and criminal penalties for
running ads that are misleading or for promotions that are not registered.
However, if the newspaper itself develops and publishes the game promotion,
there could be liability for not complying with the law. There is a 1997 case where the
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State agency filed administrative claims against a radio station owner for a game
promotion that the radio station had developed and aired. The administrative order was
appealed to the appellate court which dismissed the complaint on the ground that there is
no connection to a consumer product or service.
Susan’s Games of Chance Analysis (8-29-07 email)
First, it will be an illegal lottery only if you have prize, chance and consideration.
Clearly, the draft advertisement reflects prize and chance; however, it is not immediately
apparent from the ad if consideration is present. Consideration typically takes the form
of a purchase or entry fee requirement. In this particular scenario, consideration likely
would take the form of a cover charge to enter the facility, parking fees, fees to play the
games, or, of course, actual monetary wagers. There may be other items that amount to
consideration.
Game of chance promotions must be registered with the state under certain
circumstances. What is not apparent in the advertisement is whether the aggregate value
of the prizes to be awarded exceeds $5,000. If that value threshold is met, then the
registration requirements as well as a host of other considerations and restrictions
(bonding, posting of rules, certain prohibitions, post-promotion fulfillment and reporting
obligations, etc.) will also be triggered. Importantly, if the sponsor is required to register
the promotion (with the Florida Department of Agriculture & Consumer Services), it
would be required to do this at least 7 days before the sponsor starts advertising the
promotion. Registration requires the complete official rules, a completed registration
form and $100 check be supplied to the Division of Consumers Services of the Florida
Department of Agriculture & Consumer Services.
A second issue that is potentially implicated by the proposed advertisement is the
applicability of Florida’s charitable solicitations regulatory scheme. Depending on how
these solicitations are ultimately made, and how/what charities are benefited from the
promotion, the sponsor may be required to register as a “commercial co-venturer” with
Florida, which also requires certain disclosural and record-keeping requirements, as well
as certain prohibitions. The language may too vague to make an immediate
determination.
Finally, the use of gaming machines is regulated by Florida law. Those who wish
to use casino the games must adhere to certain requirements, such as registering the
machines (or making sure that the machine-vendor has registered them) with the local
U.S. Attorney’s Office, as well as certain restrictions on use, availability to the general
public, age of users and other items.
The above issues are requirements or conditions imposed on the sponsor of the
promotion, not the medium for the advertisement. Thus, the advertiser is less at risk of
being on the receiving end of an enforcement action; however, if the advertisement turns
out to be illegal on its face, we would recommend the newspaper be wary of accepting it.
In the meantime, newspaper might consider requiring the sponsor/advertiser to provide an
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agreement under which it acknowledges and warrants that all state, federal and local laws
or ordinances will be satisfied, all necessary registrations, bonds and permits are being
obtained, the advertised promotion will not violate any laws, and that the sponsor will
indemnify and hold you harmless in the event that they fail to accomplish those tasks or
satisfy any of these representations or warranties. In addition, this would be the right
time to require the sponsor to provide you with the additional information necessary to
make the determinations referenced above regarding gambling and charitable
solicitations regulations. In addition once that additional information is provided, there
well may be a need to fine-tune the advertisement to avoid it being characterized as false
or misleading.
Securities
The issuer of securities or person acting on issuer’s behalf cannot offer or sell
“securities” via ads in the newspaper. Here is the rule-c) Limitation on manner of offering. Except as provided in § 230.504(b)(1) [nonapplicable], neither the issuer nor any person acting on its behalf shall offer or sell
the securities by any form of general solicitation or general advertising, including,
but not limited to, the following:
(1) Any advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio..
Are “first mortgages” securities exempt from registration? If so, is the person
placing the ad the “issuer” that is barred from taking out the ad? These are complex
questions in a complex field of securities law. You can let the advertiser know that
someone who claims to have some experience in the area has complained about the
legality of the ad under “Rule D.” Ask the advertiser if he or she is aware of Rule D,
section 502, and let them know that unregistered securities cannot be advertised by the
issuer. They may be aware of the rule and why they are not covered and that way you can
document your file and run the ads based on the advertiser’s assurance since you are not
required to be an expert in the area and have followed up on the complaint. If they are
not aware of the rule, it will probably benefit them to at least check into this before
running further ads.
Sellers of Travel
Another area of advertising regulation pertains to sellers of travel. “Nonexempt”
“sellers of travel” must register with Florida Dept. of Agriculture and Consumer Services
(FDACS) each year AND include their registration number in all advertisements. If the
seller is claiming an exemption, the seller is ordinarily required to file an affidavit of
exemption with FDACS. In sum, advertisers for prearranged travel services should have
either a registration number, and that number should be in the ad, or a copy of its
affidavit of exemption.
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Sellers of travel must follow certain ad rules:
 Ad offering to sell a vacation certificate must say “This is an offer to sell
travel.” In order to use an answering service or drop box, ad must include
seller’s fixed business address.
 Seller cannot use trademark or logo without written authorization from
trademark holder.
Adoption Ads
General
Florida law prohibits any person, except an “adoption entity,” from “advertising”
or “offering to the public” that a minor is available for adoption or that a minor is sought
for adoption. “Adoption entity” includes the state agency, as well any licensed Florida
child-placing entity and “an intermediary.” An intermediary, in turn, is defined to include
an attorney who is “licensed to practice in Florida,” and who is “placing or intends to
place a child for adoption.” In addition, Florida law says it is unlawful for “any person”
to publish any such ad or “assist an unlicensed person in publishing” such an ad unless
the “Florida license number of the entity or attorney placing the advertisement” is
included. Section 63.212(1)(g), Florida Statutes.
Thus, in sum, in Florida, no person can advertise regarding a minor’s adoption
unless the advertiser is a licensed child-placing entity or a Florida attorney. Ads must
include the attorney’s Florida Bar number or the entity’s Florida license number.
Recently, the Department of Children and Families wrote at least one media entity
putting it “on notice” of these laws and stating that willful violations are a second degree
misdemeanor. In light of this law and the recent agency activity, it is advisable that
newspapers or websites running an adoption ad check to see if the ad includes a Florida
(not out of state) attorney’s bar number or a license number for a Florida child-placing
entity. While generally newspapers are not responsible to police the ads they run, in the
case of adoptions, heightened due diligence about the source and contents of the ad may
be advisable.
Examples
“Childless couple (early thirties) wishes to adopt newborn into a loving, stable
home. Full time mom and devoted dad, expenses paid. Call 1-800-222-1424 PIN 2039
ask for Barbara or Keith.“
In this example, the advertisement lists the couple’s contact information as
opposed to a licensed attorney’s. The recommended way to proceed is to list the attorney
as the contact person in the ad as opposed to the couple, and to include the attorney’s bar
number.
“Warm caring financial secure happily married couple long to share our love with
your baby. Stay at home mom and professional dad promise a happy and secure future.
Expenses paid. Call Phone no. “
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Again, the above ad does include the attorney’s bar number but the other number
is a toll free line to the couple wishing to adopt. If the couple is represented by an
intermediary attorney, then the safest way to proceed is to have the attorney place the
advertisement and be the contact person, not the couple.
Surrogate Mother and Sperm Donor Ads
Examples
Here are examples of ads that solicit females to become surrogate mothers and
males to become sperm donors:
SURROGATE MOMS NEEDED!
$18,000 Compensation. Healthy, non-smoking
females, 21-37 yrs, height/weight proportionate.
Gave birth with no complications. No criminal
background, with private health insurance.
"EARN $5-10K & HELP COUPLE REALIZE DREAM! Attractive,
professional hetero couple (financially & mentally stable) need SPERM
DONOR. No parental duties ever result, privacy assured 4ever. If U R healthy
attractive student under 35, Caucasian, 5'10" – 6'2", w/no STDs, please send
name, age & photo to _______"
Are these ads legal? The answer is that, yes, Florida law recognizes contracts for
surrogates and sperm donors. However, there are two main limitations.
First, all parties participating in these contracts must be at least 18 years of age.
Therefore, it would be advisable to limit the ad to adult surrogates and donors.
Second, there are compensation limits. With respect to surrogate contracts, the
commissioning couple may agree to pay “only reasonable living, legal, medical,
psychological, and psychiatric expenses of the gestational surrogate that are directly
related to prenatal, intrapartial, and postpartem periods.” With respect to sperm donors,
only “reasonable compensation directly related to the donation of ... sperm” is permitted.
There appear to be no cases that define what "reasonable” means as used in these
laws. It is not clear, for example, if $18,000 is a reasonable amount for living, legal,
medical etc. expenses in the first ad. Regarding the second ad, it seems that given the
relatively short duration of the donation process, “$5-10k “ might be considered
excessive. Given the statutory language, the more prudent approach would be to change
the language relating to a specific amount so that it is more in line with the statutory
compensation provision. For example, the first ad might be changes to say the surrogate
will be “compensated for her reasonable living, medical, legal, etc. expenses up to
$18,000.”
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Ads by Regulated Services/Professions
The Florida Department of Business and Professional Regulation (DBPR)
requires some regulated occupations to include license numbers and other information in
ads.
Construction Industry
General Contractors
Contractors regulated by the Construction Industry Licensing Board must include
in all advertising either the qualifying contractor’s individual license number or the
business organization’s license number. Violations may trigger a $500 to $2500 fine
and/or probation.
Section 489.113(3)(g) of the Florida Statutes states “no general, building, or
residential contractor certified after 1973 shall act as, hold himself or herself out to be, or
advertise himself or herself to be a roofing contractor unless he or she is certified or
registered as a roofing contractor.”
The rule says that that “the registration or certification number of each contractor
or certificate of authority number for each business organization must appear in each …
advertisement…used by that contractor or business organization in the practice of
contracting.”
Exemptions
There are, however, exemptions to this requirement. For example, section
489.103(6) states the statutory chapter does not apply to the following: The sale or
installation of any finished products, materials, or articles of merchandise that are not
fabricated into and do not become a permanent fixed part of the structure, such as
awnings. However, this subsection does not exempt in-ground spas and swimming pools
that involve excavation, plumbing, chemicals, or wiring of any appliance without a
factory-installed electrical cord and plug.
Another exemption applies to the work of a casual, minor, or inconsequential
nature in which the aggregate contract price for labor, materials, and all other items is
less than $ 1,000. HOWEVER, this exemption does not apply if the person who
advertises that he or she is a contractor or otherwise represents that he or she is qualified
to engage in contracting.
If the advertiser does not provide license number and is claiming they fall within
one of these exemptions, you can at least document that in your files.
Unlicensed Contractor Ad Example
The newspaper has a customer who wants to run the following ad:
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Unlicensed contracting is against the law. If you hire an unlicensed contractor you
could be guilty of aiding and abetting an unlicensed contractor or unlicensed
activity. Check before you hire: www.pcclb.com. Contractors are required to
have insurance. Don’t end up paying twice! Brought to you by the Association of
Contractors.
The ad can be run. The applicable law (§ 455.228) says that the state licensing
agency can bring an administrative or judicial action against a person who “aids and abets
the unlicensed practice by employing such unlicensed person.” So, the ad statement
should be ok as it says “could be guilty.”
Roofing Contractors
Section 489.119(6)(b) of the Florida statutes covers roofing contractors. It states
that “the registration or certification number of each contractor or certificate of authority
number for each business organization shall appear in each offer of services, business
proposal, bid, contract, or advertisement, regardless of medium, as defined by board rule,
used by that contractor or business organization in the practice of contracting.”
This provision requires the roofing contractor to include in the advertisement his
or her “registration or certificate number” (or if a business organization, its “certificate of
authority number”) used by the contractor or business organization in the practice of
contracting. The law does not specifically state that the advertisement must include the
full registered name without abbreviations, as claimed by the complaining roofer, but this
seems to be a logical requirement and it would be advisable to require that information.
Physicians/Medical Services
General
Physicians, nurses, physician assistants, mental health counselor and opticians
must disclose the type of license they hold in advertisements.
Proposed rule (11/27/06) requires ads containing name of a licensed person under
Chapter 458 (covering physicians, and physician’s and anesthesiologist assistants) to
identify licensee as either a medical doctor, physician assistant, or anesthesiologist
assistant 64B15-9.007.
Physicians Selling, Moving, Relocating
64B8-10.002 Medical Records of Physicians Relocating or Terminating Practice;
Retention, Disposition, Time Limitations. “Once during each week for four (4)
consecutive weeks, in the newspaper of greatest general circulation in each county in
which the physician practices or practiced and in a local newspaper that serves the
immediate practice area.”
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Chiropractic ads must indicate the chiropractic clinic or related institution in
which the chiropractor practices.
Optometrists have detailed ad requirements—branch office hours must be noted
or availability of optometrist.
Dentists have advertising requirements such as banning fee information without a
disclaimer that such is a minimum fee. § 466.019.
Other Businesses
Massage therapy
Florida law (Chapter 480) and rule (64B7-33.001) state that those administering
massages (a term very broadly defined) for compensation (i.e., massage therapists) must
be licensed and that any advertisement of massage services must include the license
number of the licensed therapist.
A sample ad says following: “AmazingBackRubs provided in your house or mine
to single professional women ages 30+.” Is that legal? The answer is that the person here
is unlicensed creates a problem for the advertiser and perhaps for the newspaper. The
safest way to limit risk would be to only run message-type service ads placed by licensed
therapists where the ad lists the license number.
Real estate ads must include licensed name of real estate brokerage firm.
Ballroom dance studio ads include the phrase "( NAME OF FIRM ) is
registered with the State of Florida as a Ballroom Dance Studio
Registration No.___."
Talent agency ads must include the license number as registered and the
words “talent agency“ and the name.
Newspaper liability for ads without license numbers
Newspapers are not liable for advertisements that fail to list occupational license
numbers. However, it is good business practice for the newspaper to know about the law
in this area and pass that information on to advertisers.
Employer Seeking Employees Ads--Classified ad Requiring Upfront Fee
Individuals or entities place classifieds asking for a fee upfront, usually $75 or so.
Complaints arise that these ads may be scams that set up a store front long enough to
collect “small fees” from multiple applicants, and then disappear before anybody can
catch up with them. Here are examples:
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CLERICAL- WILL TRAIN. Medical, dental assistant. FT. No nights,
weekends. $13-$18/hr. Small fee required. [phone number]
WAREHOUSE: ALL DEPTS. Must be able to lift 20 lbs. Immediate
hire.
Full benefits. Full-time.
$12-$22/hr. (DOE). Overtime pay. [phone
number] Small fee required).
WAREHOUSE NOW HIRING! All Departments.
Assembly/Shipping/Receiving & Forklift. Immediate hire.
Management/Office help available. No experience, will train. 1st &
Shifts. Benefits. $13-$22/hr. Fee required. [phone number]
2nd
What is the newspaper’s legal and ethical obligation to their readers and
advertisers regarding these ads?
The newspaper will not be liable for running these ads unless it has knowledge
that they are fraudulent or illegal, and knows this would lead to damages suffered by
anyone that may be injured as a result. The newspaper is not expected to research each ad
in detail to determine if they are legitimate. It is a challenge to determine whether those
placing the ads are really “simply taking other people’s money and running,” as some
have suggested without supporting evidence. Maybe there actually is some legitimate
service being performed for the “small fee.” Ultimately, it will be the customer who will
have to decide if the small fee is worth it. On the other hand, if the newspaper actually
knows that these particular advertisers are pocketing the small fee and then disappearing,
it would be advisable to cease running the ads.
As far as the paper’s ethical obligations are concerned, that is a looser standard
and will be primarily based on customer relations and the revenue potential and whether
it is worth it to run the ads. The paper should be leery about running the ads if it does not
feel they are legitimate perhaps based on customer feedback or complaints. Perhaps there
is some “legitimacy test” required that would entail a call to the number to help the paper
determine who is placing the ads and in deciding if it is ethical to run them. Again, the
paper is not obligated to be the “ad police” although a “gut check” may be ok if there is a
way to do this.
Gold Buyer Ads
A gold buyer wants to run an ad for his business but the ad does not identify the
buyer, the business, or the registration number. Is this required? The answer is yes,
persons that buy used gold typically fall under the secondhand metals dealers regulations
pursuant to Chapter 598 of the Florida Statutes. Secondhand metals dealer are usually
required to be registered with the Department of Revenue and the registration number
must be displayed at the place of business. They also must use their own name or the
registered name of their business. While there is no specific requirement that requires the
dealer’s ad to id himself, it would be a good idea for them to include their name AND
registration number in the ad or at least provide that information for the newspaper’s ad
file.
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Cigarettes and Other Tobacco Products
Ads for Bulk Sales of Cigarettes By Mail
Does the following ad soliciting customers for bulk sales of cigarettes require any
disclaimers?
Cigarette Carton Prices as low as; Marlboro $15.90, Camel $14.90, More
Varieties Available! Only $5.50 per carton shipped to your door! Minimum
Order 3 Cartons! No Additional Charges!
The answer depends on who is purchasing the advertisements. If it is a
manufacturer or importer of cigarettes, they must make the labeling disclosure required
by federal law. The company identified in the ad looks like it may be an importer. If so,
the ad would need to include one of these declaimers:
SURGEON GENERAL’S WARNING: Smoking Causes Lung
Cancer, Heart
Disease, Emphysema, And May Complicate Pregnancy.
SURGEON GENERAL’S WARNING: Cigarette Smoke Contains Carbon
Monoxide.
If the advertiser is an importer, the paper needs to make sure the ad follows all
applicable rules about the size of the warning label, etc. Before running the ad, the paper
needs to find out whether the advertiser is an importer.
Electronic Cigarettes
The FDA does not currently regulate e-cigarette ads, unless the ads claim that
they are for the purpose of helping the user quit smoking (in which case they are
regulated as a drug).
Some states have their own regulations on e-cigarette ads, but Florida does not
appear to have any. Some papers, as a matter of policy, won’t run the ads. Thus, unless
the paper has a policy against these ads, they likely could run them without legal liability.
Here is an article on the issue:
http://www.medpagetoday.com/PublicHealthPolicy/FDAGeneral/22103
Alcohol
Liquor Ads
Are there alcohol advertising restrictions for retailers, specifically those that
might pertain to inserts by retailers that advertise liquor? State law imposes specific
liquor advertising and solicitation requirements on manufacturers and distributors but
these generally do not apply to retailers like grocery chain package stores. Local
regulations should be checked. The federal regulations have specific advertising criteria
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regarding “distilled spirits” but they also just apply to manufacturers and distributors and
not retailers or publishers/broadcasters. It appears that some of the larger retailer ads do
contain an underage warning, which seems to be a good practice.
Mail Order Wine Sales Ads
Is it legal to advertise mail-order wine, in other words, wine that you order and
have shipped to your home? The answer is that there is no blanket prohibition on
advertising for wine to be shipped to Florida consumers from other states. There are
federal rules concerning advertising content, and Florida requires the seller to register
with the state. It also seems that the U.S. Postal Service won’t deliver wine via U.S.
Mail. Apparently, UPS will deliver wine but requires an adult sign for the wine.
In any event, it is up to the advertiser/shipper to comply with these rules, not the
newspaper. (The newspaper rate card should reinforce the advertiser’s obligation to make
sure its service and the ad content are lawful.) So there appears to be little risk to the
newspaper in this situation.
Pharmaceuticals
General
The requirements for advertising (in the newspaper or in its online edition) by
non-Florida pharmacies dispensing medical drugs in the state are as follows.
Nonresident pharmacies must register with the board. § 465.0156. It’s unlawful
for a nonresident pharmacy which is not registered pursuant to this section to advertise its
services. Also, internet pharmacies must have an internet pharmacy permit as required
by the statute (section 465.0197). “Internet pharmacies” can include in-state and out-ofstate pharmacies that use the Internet as part of the prescription filling process.
Newspaper should check as to whether the nonresident pharmacy is registered, or in the
case of an internet pharmacy, whether it is permitted, in Florida. They can do a license
search at this address: https://ww2.doh.state.fl.us/IRM00PRAES/PRASLIST.ASP
Document these steps.
Note that as early as 2001, the Florida Attorney General noted that Florida law
allows for the online sale of prescription drugs, but pharmacies selling to Floridians over
the Internet must be registered with the state and cannot legally sell such drugs without a
doctor's prescription. Also, note that there is a collection of fairly current state and
federal regulations regarding online pharmacies, including Florida and that the new
federal act requires online pharmacies “to comply with state laws for the licensure of
pharmacies in each state in which they operate or sell controlled substances and notify the
Attorney General and applicable state boards of pharmacy 30 days prior to offering to
sell, deliver, distribute, or dispense controlled substances over the Internet.”
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Example
Here is a sample online pharmacy ad. Is it legal?
Prescription Diabetes and Asthma Medications
Discounts up to 92%
No insurance needed - 100% accepted
Medications delivered right to your door
Shipping Globally Since 2002!
[phone and website address]
Based on the below links regarding federal enforcement action against Google for
internet pharmacy ads, I don’t think it’s advisable (beyond Canada in some cases) to
accept ads that advertise foreign pharmacies shipping prescription drugs to customers in
the U.S. That appears to be the case with this website which appears to be India-based.
http://www.fda.gov/ICECI/CriminalInvestigations/ucm276002.htm?utm_campaign=Goo
gle2&utm_source=fdaSearch&utm_medium=website&utm_term=google pharmacy
ads&utm_content=1
http://www.justice.gov/usao/ri/news/2011/august2011/Google%20Agreement.pdf
Currency Ads
Are ads using the shells of a $100, $50 and $10 bill as the border around coupons
in an ad legal and if so, what are the restrictions?
Federal regulation 31 CFR 411.1 authorizes printing or publishing of color
illustrations of U.S. currency provided that:
(1) The illustration be of a size less than three-fourths or more than one and onehalf, in linear dimension, of each part of any matter so illustrated;
(2) The illustration be one-sided; and
(3) All negatives, plates, positives, digitized storage medium, graphic files,
magnetic medium, optical storage devices, and any other thing used in the making
of the illustration that contain an image of the illustration or any part thereof shall
be destroyed and/or deleted or erased after their final use in accordance with this
section.
Reference to taxes owed
A furniture ad says “we will pay your sales tax.” Can it can be worded that way? The
answer is that it’s illegal for any retailer to pay the sales tax themselves or advertise that
they will pay or otherwise absorb the sales tax.
Section 212.07(4), F.S.: A dealer engaged in any business taxable under this chapter
may not advertise or hold out to the public, in any manner, directly or indirectly, that
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he or she will absorb all or any part of the tax, or that he or she will relieve the
purchaser of the payment of all or any part of the tax, or that the tax will not be added
to the selling price of the property or services sold or released or, when added, that it
or any part thereof will be refunded either directly or indirectly by any method
whatsoever. A person who violates this provision with respect to advertising or
refund is guilty of a misdemeanor of the second degree, punishable as provided in s.
775.082 or s. 775.083. A second or subsequent offense constitutes a misdemeanor of
the first degree, punishable as provided in s. 775.082 or s. 775.083.
Adult Themed Ads
What is legality of designing or publishing escort service ads?
The state will argue that the activities that allegedly rise to the level of “aiding
and abetting” illegal prostitution activities. Florida has such a law on the books. It is
doubtful, however, that the mere act of a newspaper in simply accepting an ad that on its
face does not appear to be for illegal activities, would rise to a level of aiding or abetting.
In one case, the newspaper didn't just publish the ads. Rather, the newspaper
allegedly actively participated in trying to craft ads for prostitution services that wouldn't
necessarily appear to be ads for prostitution services. This alleged activity is what led to
the arrests.
Newspapers that create or provide input for adult ads, as opposed to just merely
accepting them for publication, should take appropriate pre-publication review to ensure
that legally objectionable ads are not unintentionally published. Newspapers should be
aware of this enforcement activity and the general legal framework surrounding “adult”
themed advertising. The general rule is that while commercial speech has limited
protection, this does not preclude the state or local government from proscribing speech
concerning deleterious activities such as illegal prostitution and in particular the
“publication of a want ad…soliciting prostitutes.” However, if the state (or local
government) attempts to criminalize advertisements with adult-related themes or services
without evidence linking the ad to illegal prostitution activities, such law or action
definitely would be subject to challenge on First Amendment or other grounds.
Land Auctions
Sometimes complaints are received about a land auction ads from competitors
who complaint the auctioneer is not a Florida licensed real estate broker. Without
commenting on whether or not an auctioneer must be a real estate broker, the paper
should be able to run the ad with the understanding that the paper does not make any
guarantees as to whether the seller is reputable or whether the product is worth buying.
That is a decision for the potential customer.
It is hard to imagine a situation in which the paper would face liability for the
running of the classified ad. If the competitor has a dispute with the seller, he needs to
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take that up with the seller. The paper should not be in the business of determining the
legitimacy of legal claims between the parties.
Also DBPR regulations (61G2-5.004) for auction ads advertising require
advertisers to "include the name and license number of the principal auctioneer and the
auction business; to include the name and license number of the sponsor if an apprentice
is acting as the principal auctioneer." The auctioneer who advertises an auction as
absolute must specify any and all items to be sold with reserve or with minimum bids and
must include the percentage amount of any buyer's premium or surcharge which is a
condition to sale.
It will be the advertiser's responsibility to comply but it could be good business
practice to point out deficiencies if you are aware of them.
Firearms
General
Does Florida law regulate or prohibit the running of firearms ads? In addition, are
there any guidelines for retail firearms ads? i.e. Florida Gun Exchange, Dick’s Sporting
Goods, WalMart, etc.?
There are no statutes or cases which would prohibit the running of classified
advertisements for guns in a newspaper. That is not to say that a creative plaintiff’s
attorney couldn’t try to bring a case if something happened – something similar to the
Soldier of Fortune magazine cases from several years ago. I know some newspapers have
internal polices not to run ads for handguns (see Virginia Pilot article).
Further on the policy side, below is a youtube clip with a news story that
discusses a disclaimer some newspapers apparently place in their papers in the gun
section. Also attached is a rather dated survey of newspapers from the same group.
http://www.youtube.com/watch?v=wD0zKybULfw
Regarding retail sales of guns, with these types of companies, we asked Jim
McGuire for his opinion and he indicates that it is probably safe to assume that their gun
sales are all above board (they have licenses and conduct whatever background check is
necessary). This strikes Jim and me as more of an ethics problem – does the paper want
to refuse these ads because it believes they increase the likelihood of gun violence, etc.?
Here’s an excerpt for a Huffington Post article that Jim located:
And while the Federal Trade Commission currently has no broad rules governing
gun advertising, most major newspaper and broadcast outlets explicitly limit or
flat-out refuse gun advertising. The New York Times, for example, does not
accept advertisements for firearms or ammunition sold by mail-order, online or at
gun shows, nor any advertisements for handguns, according to a company
spokeswoman -- though it will accept ads for retail rifle sales, or for antique
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guns sold at auction or retail. A spokeswoman for The Washington Post simply
said: "We have very tight restrictions on gun advertising and as a general matter
we do not take these sorts of ads."
Gun Show Ads
What is the ruling on “gun show ads”--do they have to have a license number in
the ad? The answer is that federal regulations require posting of the gun seller license at
the gun show premises but are silent on including the license number in the advertising
for the show. 27 CFR § 478.100, § 478.91. However, if the gun seller/licensee is the
entity actually taking out the ad, it would seem consistent to include their license number
in the ad since they are required to post it at the gun show. On the other hand, if the show
promoter takes out the ad, than there will be no license number since the regulations state
that there is no separate license required for such gun show.
Sports Hunting Rifle Ads
Are classified ads for guns - in particular a sporting or hunting rifle allowed?
There are no statutes or Florida cases which would prohibit the running of classified
advertisements for guns in a newspaper. That is not to say that a creative plaintiff’s
attorney couldn’t try to bring a case if something happened – something similar to the
Soldier of Fortune magazine cases. Some newspapers have internal polices not to run ads
for firearms at all or not to run them for handguns but allow ads for sporting rifles and
shotguns.
Attorney or Legal Service Ads
Tips for Reviewing
From time to time, member newspapers receive ad copy from ad agencies or law
firms that target potential clients for legal services provided by the law firm. For
example, there have been several examples of law firms submitting ads for publication
that contain detailed factual information about the compliance history of medical
facilities like nursing homes. What are some basic suggestions that might help members
in reviewing such ads to for risk management purposes, particularly for those smaller
papers without a legal department?
First, lawyer ads are regulated by the Florida Bar, which requires print and nonlawyer web ads to be submitted (unless an exemption applies) to the Bar either before or
at the same time the ad is first published. This includes banner and pop up ads that are to
appear on the newspaper’s website. The Bar ad rules are quite detailed but suffice it to
say that once a non-exempt ad is submitted, the Bar will either approve or disapprove the
ad within 15 days. The ad can be used prior to the Bar’s decision but if it is later found
noncompliant, a complaint may be filed and the lawyer may be subject to discipline. To
avoid this risk, the Bar allows attorneys to obtain a preliminary determination prior to
publication. While the newspaper running a non-complying ad will not be a subject to
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Bar enforcement action, it should still be wary of such ads since any Bar noncompliance
activity or finding will likely reflect on the overall accuracy of the ad. Thus, the
newspapers should at least determine if the ad has been submitted to the Bar and whether
the Bar has or has plans to take any action on the ad.
The second area of review for lawyer ads relates to possible defamatory or
libelous statement in the ad. Although there are many potential issues to look at in fully
vetting an ad (or any potentially sensitive publication for that matter) for libel risks,
generally the paper will want to make sure that the ad is accurate and truthful. This is
important because the best defense to a libel suit will be that the statement complained of
is true or substantially and materially true.
Further, in order for libel to arise, the plaintiff must show there was some degree
of fault in publishing the material. For example, if the plaintiff is a public figure, there
will be a higher actual malice (i.e., deliberate or reckless publication of untruths) degree
of fault required on the part of the newspaper. Therefore, with ads involving a public
figure, the paper will want to be certain that they have not exhibited actual malice in
publishing anything that might ultimately turn out to be untruthful. As for private
figures, they will be held to a less stringent showing of fault and will have an easier time
in proving libel. Thus, ads that pertain to private persons should be scrutinized even
more closely for accuracy.
If all this sounds complicated, consider a rule of thumb. The newspapers should
want the law firm to affirmatively represent that the statements in the ads are true, and
that the law firm has actual evidence in its possession to support the truth of the ads.
It is advisable that once such representations are received from the law firm, the
newspaper should document and keep such documentation in a file along with the ad
copy.
Basic Principles of Copyright Law Applicable to Newspaper Advertisements
Newspapers are often concerned with the application of copyright laws to
advertisements. Is the ad copyrightable? Who owns the copyright--the owner the
newspaper, the advertiser, or the ad agency? Does the owner have to provide notice of
the copyright and other formalities? What is the importance of a written agreement
between the parties? These common questions are addressed as follows:
What Ads Are Copyrightable?
Under the federal copyright law, an advertisement is accorded copyright protection if it
contains a modicum of creativity. For example, pictorial or graphical advertisements may
be properly classified as a “pictorial, graphic, and sculptural work” and a textual ad may
be classified as a literary work. Any minimum expression of originality is sufficient. On
the other hand, facts or raw data themselves are neither original nor creative but are in
existence and publicly available. Thus, for example, a real estate ad that lists only the
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attributes of a property is a listing of facts and raw data and is not entitled to copyright
protection. However, the manner in which those facts are presented may be.
Who Owns the Copyright?
If an ad contains creative work that is eligible for copyright protection, the next
question is who owns the copyright, the newspaper, advertiser, or ad agency?
For advertisements prepared and placed by the advertiser, the general rule is that
advertisements are treated like all other contributions to collective works. That is, unless
there is an express transfer of the copyright, the owner of the copyright in the collective
work (the newspaper) is presumed to only have the right to reproduce and distribute the
contribution as part of that collective work. Thus, the newspaper obtains only a license as
to certain uses of the advertisement, while the copyright ownership of an advertisement
developed and prepared by the advertiser remains in the advertiser, ad agency or other
“author” thereof. Nimmer on Copyrights, section 2.08[G][2].
However, newspapers are frequently capable of supplying the artistic, pictorial
and graphic material to develop ad layouts for an advertiser. In such cases, where the
newspaper develops the layout, the newspaper would ordinarily be entitled to copyright
protection as the author. However, in certain circumstances advertisers may claim that
despite the fact the newspaper developed the ad, they are entitled to the copyright based
on the “work for hire” section of the copyright law. Under the current version of the
Copyright Act, an advertisement prepared by the newspaper can be deemed a work for
hire owned by the advertiser only when a writing exists signed by both parties. Thus, for
example, if the advertiser uses a newspaper’s ad production department, in order for the
advertiser to claim a copyright there must be some form of work for hire agreement.
Absent such writing, the newspaper preparing the ad owns the copyright to it and can
prevent the advertiser from reproducing the ad elsewhere. See Nimmer on Copyrights,
section 2.08[G][4][a]; Brunswick Beacon, Inc. v. Schock-Hopchas Publishing Co., 810
F.2d 410, 414 (4th Cir. 1987).
It is also noted that an ad may be created by both the newspaper and the
advertiser. In such situations, both parties might own the copyright, unless, again, there
is a written agreement setting forth the ownership rights.
Is Notice of Copyright Ownership Required?
With passage of the Berne Convention Implementation Act (BCIA) of 1988
notice (and other formalities such as registration) is no longer a condition to copyright
protection for copyright claims arising after that date. Thus, lack of notice does not
automatically invalidate the copyright. However, BCIA did not do away with notice
altogether: the notice provisions of the copyright law are still on the books, and they are
useful tools to secure procedural advantages. For example, in infringement cases, lack of
notice can strengthen defenses raised by the defendant infringer. Nimmer, section
7.02[B].
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Where notice is provided, the form of notice for advertisements is different from the form
required of other contributions to collective works. Ordinarily, only a single notice is
required for the entire collective work. However, in the case of advertisements, a separate
notice in the name of the copyright owner of the ad is necessary. Nimmer, section
2.08[G][4][a]. Since the copyright notice provisions are quite complicated, newspapers
should consult with counsel on whether and what form of notice should be provided.
What is the Importance of a Written Agreement?
As noted above, the parties’ entitlement to copyright protection will be governed
by whatever agreement the advertiser enters into with the newspaper. For example, in the
situation where both the advertiser or ad agency and the newspaper create the ad, can the
newspaper provide the ad for use by its online networks? Without a written agreement,
the answer will be unclear. It is important that agreements be formalized and that the
written agreement is crafted to accurately reflect the parties’ intent regarding ownership
of copyrightable advertisements. In particular, written agreements should anticipate and
deal with potential “work for hire” problems before the ad is published.
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