Innovation is exploding into new territories...daily. Artificial intelligence is becoming the crux of sales strategies, facial recognition technology promises to create a seamless digital experience for brick and mortar stores, and self-driving cars will soon be carting us around as we read the news about what's next. And that's just a small sampling.

And with all that innovation comes the marketing that goes with it.

When you are creating anything new, the time will come when you have to find the best way to sell it to the masses. So you get your marketing team in there to bounce around ideas and find the best way to persuade the audience to buy the product. If you have exceptionally creative wordsmiths on your team, they will do whatever it takes to create marketing content that excites; sometimes, the most innocent creativity can get us into trouble.

Superlative marketing language can completely distort the expectations of a product, which can quickly migrate from a gray area into what are considered false claims. This not only threatens to hurt a single company, but can taint an entire industry by association with damage that includes tarnished reputations, customer flight and even legal consequences.

The possibility of false advertising is present when well meaning marketers try to put their best foot forward, but especially in aggressive business models that sell the promise of success in real estate investments, stock trading systems and similar income-producing seminars. How many consumers have come away from a seminar unable to reach inflated expectations that will never come to pass? Still, the over-selling continues by a few, giving legitimate companies a bad rap.

To control and counteract a few rogue players, businesses have banded together to voluntarily police themselves. One such self-regulating organization is the ERSP, or the Electronic Retailing Self-Regulation Program. ERSP was formed in 2004 and is the self-regulatory arm of the Electronic Retailing Association (ERA) and a service of the advertising industry and Council of Better Business Bureaus, Inc. Its mission is to enhance consumer confidence in electronic retailing by holding companies to a higher standard of truthfulness and accuracy in advertising.

ERSP is not a government agency, but works hand in hand with the Council of Better Business Bureaus, Inc. and refers non-compliant advertisers to the Federal Trade Commission (FTC). The organization keeps a list of companies who electively participate in their review program and ensures compliance.

Leonard Gordon, senior shareholder in the Manhattan office of Venable LLP, and former Regional Director of the FTC, tells why self-regulation works. "An active industry self-regulatory effort that is overseen by an independent third-party, such as ERSP, has tremendous benefits for both industry and consumer protection law enforcers. For industry, it helps level the playing field so that honest merchants don't lose market share to merchants not following the rules. For law enforcement, an industry's demonstrated commitment to meaningful participation in self-regulation may free up resources to pursue enforcement elsewhere."

Many of the direct-to-consumer advertising campaigns reviewed by ERSP are infomercials. Reviews also apply to other aspects of marketing, including radio advertising, Internet presence, direct mail and TV shopping channel programs. In 2012 ERSP created the "ERSP Review Program" which conducts regular reviews of recorded seminars, advertising claims and sales presentations of participating companies. It looks for undue sales pressure, overstated claims of potential earnings, false advertisements, misleading testimonials, and improper business practices.

Peter Marinello, Director of ERSP and Vice President of the Council of Better Business Bureaus, Inc., explains, "At ERSP we closely review claims made by national advertisers, and have the difficult conversations when necessary. Part of monitoring involves opening cases to investigate claims. We don't endorse, approve or certify. We closely monitor participating companies, with the goal of improving the accuracy of communications with consumers."

When ERSP finds a marketing campaign to be in non-compliance with existing rules or regulations, the marketer is notified and given the opportunity to withdraw the campaign or make changes. If the marketer fails to comply, the program will be referred to the FTC or another appropriate regulatory body.

"Clients want an honest assessment of how their advertising stacks up against industry regulation. As attorneys, we seek to provide that, says Blair Jackson, sharehold of Invictus Law. "However, as representatives of the clients our assessments can only go so far. ERSP provides not only invaluable insight that is both independent and detached, but also the added weight of legitimate self-regulation that carries ramifications for failures to meet best practices."

As you develop your marketing campaigns, pay exceptionally close attention to your language - particularly your claims. If you feel like you're "over-selling," you probably are. Certainly, marketing has to be as creative as the innovations it serves, but all of us have to be careful not to cross the lines when we're pushing the boundaries. The public demands marketing with unwavering integrity - and that's good news for all of us.

Published on: Feb 24, 2017