Find your answers on many common advertising-related questions.
OK ... so it’s true. B has been in a theater production recently. Now what? And what about gray areas? (B was indeed in a theater production in 1981). Are we being asked to be truth mediators before publication?
You are responsible for every word that appears in an advertisement...whether it is a political ad or a regular ad. You always have to check.
There is more latitude in political ads but not enough to call someone a thief. Fortunately most political ads use a lot of hyperbole. To say that the candidate for treasurer “couldn’t figure his way out of a paper bag with a flash light” cannot support a libel claim. To say that the candidate “lost his last job for expense account problems” is a defamatory statement and if it is false will subject you to liability.
We recommend that political ads be reviewed by an editor because they usually know what devices are being used by candidates.
Ads placed by candidates and political committees must contain language that states:
- Who paid for the ad
- The address of the person or entity paying for the ad
- That the advertising funds are regulated funds
Michigan law also requires that an ad indicate whether it is or is not paid for by a candidate.
The U.S. Supreme Court has held that individuals who are not candidates or members of regulated political committees cannot be required by the government to identify themselves as the advertiser. The law does not require an independent advertiser to list who placed the ad.
However, a newspaper may formulate its own policy for the sake of its readers requiring identification of the person placing the ad. Certainly the newspaper needs such information for its bills and readers will find useful the credentials of the person supporting or opposing the proposition. It is also suggested that credit to the Committee for Better Government is not useful. It is our strong recommendation that you have a policy that requires both the name and the address of the person paying for the ad to be contained in the ad. This is not a matter of law, but of accountability to the newspaper and the readership. It also makes life easier for your sales staff.
Candidates and ballot committees are another matter. By law, their ads must contain language identifying that is it paid for by the campaign. In addition, it must also contain the language "Paid for with regulated funds." Thus, ads placed by a candidate or her committee or a committee for or against a ballot proposal must contain the following:
PAID FOR BY THE COMMITTEE TO ELECT ALFRED E. NEWMAN WITH REGULATED FUNDS.
If the ad is not paid for by a committee or a candidate, it should say so:
NOT AUTHORIZED BY ANY CANDIDATE COMMITTEE.
Technically since this is an individual contribution of each member, there is no statutory requirement to print who paid for the ad. But we recommend that you put on the ad who paid for it to be sure that you don’t accidentally violate the law and because it makes it easier to handle advertisers. “Newspaper policy” is hard for the advertiser to argue about. In this case, put “Paid for by Tom, Dick and Harry, members of the County Firefighters.” Alternatively “Paid for by individual members of the County Firefighters.” The Fire Department may not use public dollars to pay for an ad. So we want to be sure that readers know that these are not public funds being used. At the same time, their job position is important to the message: “Members of the Fire Department support this candidate.”
Keep in mind that nothing prevents the advertiser from including in their ad the name and address of the person or entity paying for the ad. Moreover, nothing prevents the newspaper from requiring that people place in their private independent ads the name and address of the person or persons paying for the ad. Disclaimers are not required by law for independent expenditures i.e. expenditures that are not made by political parties or political committees. It is our recommendation that you have a policy that requires the name of the person paying for the ad to be contained in the ad. This is not a matter of law but of accountability to the newspaper and the readership.
Overview of Decisions Relating to the Michigan Medical Marihuana Law (“MMMA”)
MCL § 333.26421 et seq
Points of Note from concurring decision of Judge O’Connell in People v. Redden,
Docket # 295809, Michigan Court of Appeals, September 14, 2010; State v. McQueen, Docket # 310951, August 23, 2011; and People v Kolanek, Michigan Supreme Court Docket # 142695
The concurring opinion in redden contains a pithy statement that is worth remembering with respect to MMMA:
Reading this act is similar to participating in the Triwizard Tournament described in Harry Potter and the Goblet of Fire: the maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act. (Redden, p. 7, fn. 10)
Although in May 2012 the Michigan Supreme Court issued a decision on the MMMA, it is hardly comprehensive – many issues remain to be determined.
The MMMA does not codify a right to use marijuana
It merely provides a procedure through which seriously ill individuals using marijuana for its palliative effects can be identified and protected from prosecution under state law. Although these individuals are still violating the Public Health Code by using marijuana, the MMMA sets forth particular circumstances under which they will not be arrested or otherwise prosecuted for their lawbreaking. (Redden, p. 2)
Even those registered/licenses by the State of Michigan are still violating the federal Controlled Substances Act and are still subject to arrest and punishment for doing so. (Redden, p. 3, fn. 2)
Many provisions of the MMMA are subject to multiple interpretations.
Defense counsel was particularly concerned that the law was not specific enough for him to advise his clients on both the strictures of the MMMA and the ramifications of certain provisions. (Redden, p. 4)
The prosecuting attorney noted that he was unable to advise municipalities, townships, police, and others regarding whether particular conduct was permitted or prohibited under the act. (Redden, p. 4)
The MMMA is not a permission slip to manufacture or sell marijuana in Michigan. (Redden, p. 15)
The MMMA does not give any individual permission to sell marijuana in the state of Michigan for any purpose. Instead, the MMMA merely identifies circumstances under which qualifying patients and primary caregivers are protected from arrest and prosecution for the "medical use" of marijuana.
If the drafters of this statute wanted to legalize the sale of marijuana to qualifying patients from primary caregivers or other qualifying patients, they would have included the term "sale" in the definition of "medical use." MCL 333.26423(e). They did not and, therefore, the sale of marijuana is not a permitted activity under § 4.
Stated differently, the MMMA does not legalize the sale of marijuana to any individual, even one registered as a qualifying patient. (Redden, p. 16)
Because these statements were contained in the concurring opinion in Redden, some viewed them as non-binding. However, the decision in McQueen (which is binding unless changed by the Michigan Supreme Court), clearly prohibits the sale of marihuana by cooperatives or other “patient-to-patient” sales of marihuana. The Michigan Court of Appeals found that the MMMA does not permit such sales. Rather, the MMMA only allows for the “delivery” or “transfer” of marihuana - not its sale - that is the “conveyance of marihuana for a price.” (McQueen, p. 13)
Dispensaries/cooperatives are not Authorized by the MMMA:
The operation of a dispensary would make little economic sense, because in order to abide by the provisions of the MMMA, the dispensary would have to be operated entirely by one individual, and could have, at most, five customers This is because, first, the MMMA has no provision for the sale of marijuana, and second, a primary caregiver is permitted to receive compensation for only the costs associated with assisting a qualifying patient to whom he or she is connected through registration with the DCH. (Redden, p. 12, FN 15)
Primary caregivers and qualifying patients cannot legally form a cooperative and grow marijuana in a shared facility without violating the MMMA and thus being subject to arrest and prosecution under the Public Health Code. (Redden, p. 13, fn 17)
I can find no circumstance under which the MMMA legalizes the sale of marijuana by medical marijuana dispensaries. The statute simply does not permit such activity. (Redden, p. 16, fn 22)
Here again, these statements in the concurring decision in Redden, which might have been viewed as non-binding are now the law based on the decision in McQueen.
Considerations Regarding Requests to Run Ads Relating to the MMMA In commercial speech cases a four-part analysis has developed:
- Whether the expression is protected by the First Amendment.
- Whether the asserted governmental interest is substantial.
- If 1 and 2 are both yes, whether the regulation at issue directly advances the governmental interest asserted, and
- Whether the regulation it is not more extensive than is necessary to serve that interest.
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); City of Rochester Hills v. Schultz, 459 Mich. 486 (1980).
The crux of the issue here is # 1 - for commercial speech to come within the protections of the First Amendment it must concern lawful activity and not be misleading.
The concurring decision in Redden, as well as the decision in McQueen, can help you decide which ads you should accept.
It is important to note that there is no way for you to verify that a person placing an ad has registered with the State of Michigan.
Decline any ads that purport to “legally” offer marihuana for sale or that ask to “legally” purchase medical marijuana – including ads for dispensaries or cooperatives. This includes ads that offer products for consumption containing marihuana.
Decline any ads that purport to offer career opportunities as medical marihuana “caregivers” or growers of medical marihuana.
Decline any ads that purport to offer valid (i.e., legal) “certification,” “registration,” or “licenses,” to obtain medical marihuana. Scrutinize the doctor ads – footnote 30 in Kolanek indicates that patients need to be seen by a doctor with whom they have a “pre-existing and ongoing relationship…as a treating physician”.
You can accept ads that relate to medical marihuana while not offering to purchase or buy it or certify its use. For example, you can accept ads that give contact information to find out about legal medical marihuana or about “comfort and care” societies that provide information on legal medical marihuana.
No you don’t have to check out those kinds of statements.
Those statements are not defamatory, i.e. derogatory. So even if they were false, no one could say that their reputation had been damaged. If you run an ad that says “our competitor’s beer is stale”...that is a problem because it might cause someone not to deal with the competitor. If the beer is not stale, you have disparaged the business and you could be sued for lost profits. The responsibility is for anything that ON ITS FACE is defamatory.
Anything that infers or states that a business cheats or sells stale goods or is incompetent is a problem.
On the other hand, if you advertise a housebroken puppy who promptly does his business on the purchaser’s best rug, the newspaper is not liable. You are not the guarantor of the products or businesses you advertise.
But you are responsible for every word that appears in your newspaper if it is defamatory on its face.
NO! Currently there is a move afoot to have a national right of publicity statute that would give all of us the right to protect our likeness from use without our permission. But the right of publicity is already recognized in New York and California. It is not clear what Michigan courts would do, but you don’t want to go there. Gates gets around enough that I am sure he would notice and not be pleased.
If he came to town and you took his picture for a news story, that use is allowed. But to use it for a commercial purpose in an ad, even for a college, is forbidden.
The Microsoft web site does have high-resolution images of Mr. Gates (and other Microsoft VIPs), but as with all material you find on the Web, you will likely need to get permission to use them before printing them in your newspaper.
Maybe. Under the regulations of the Liquor Control Commission advertising gambling in connection with alcohol is not permitted. Furthermore, gambling is illegal in Michigan except for the Michigan Lottery and certain charitable events approved by the Liquor Control Commission.
Liquor Control Regulation 436.1321 states that there shall not be advertising of alcoholic liquor connected with offering a prove or award on the completion of a contest, except upon prior written approval of the commission. 436.1013 (1) says that a licensee shall not allow unlawful gambling on the licensed premises or gambling devices.
Gambling is illegal. Keno is gambling.
However, Michigan Lottery has approved a Club Keno that runs every 5 minutes. To learn more go to: www.michigan.gov/lottery.
Joe’s ad is okay provided that the bar has been properly licensed by the Michigan Lottery to do Club Keno.
Also be advised that Club Keno is a registered trademark of the Michigan Lottery and can only be used in conjunction with approved Club Keno licensees.
Yes. According to the regulations adopted by HUD, “all advertising of RESIDENTIAL real estate for sale, rent, or financing should contain an equal housing opportunity logotype, statement or slogan as a means of educating the home-seeking public that the property is available to all persons regardless of race, color, religion, sex, handicap, familial status, or national origin. The choice of logotype, statement or slogan will depend on the type of media used and in space advertising, on the size of the advertisement.” 45 CFR 109.30.
This means that if ads for residential real estate (renting or for sale) are placed by real estate agents or anyone else, they must have the appropriate logo in their ad with the appropriate slogan. There are different size logos for different size ads. For classified ads, newspapers should have a fair housing notice at the beginning of the real estate section. This serves as the appropriate notice for all real estate ads in that edition of the newspaper.
For display ads, the larger the ad, the larger the logo and the slogan should be. Smaller ads can use the symbol of the house with the short slogan “Equal Housing Opportunity.”
Do not run this ad. The Michigan Elliott Larsen Civil Rights Act prohibits employers from running ads that discriminate on the basis of religion. This includes someone who is an atheist or an agnostic. In a case in the Michigan Court of Appeals, the court held that religious non-belief is protected. Therefore this ad is discouraging someone who is an atheist or an agnostic from responding. The inference is that non-God centered people need not apply for this position. Therefore, the ad violates the statute.
Although there is no liability to the newspaper for running such ads, newspapers refuse them because they do violate the law. Simply tell the advertiser that in conformity with the Elliot Larsen Civil Rights Act, the newspaper does not carry these kinds of ads.
If he says that he is not saying, “Don’t apply” he just wants people to know so they won’t be “uncomfortable,” the answer is that a court would read this ad as religious discrimination. It is illegal for such an ad to run.
No. This ad discriminates on the basis of age and possibly marital status or familial status. Under state and federal law, newspapers may not run employment ads that discriminate on the basis of age. Here the ad seeks someone who is mature. That is a word that CAN refer to age. It does not necessarily refer to age, except that the ad says that there need to be two people and no children. Again, who is mature and has no children? Older people. That is age discrimination. Furthermore, given the proscription against children, it appears that the ad is discriminating against familial status. Therefore, the ad as written is suspect.
Do not run this ad. The way it’s written makes it discriminatory. Even if the ad is being run by a municipality that has adopted a residency policy, it should be phrased differently: “City ordinance requires employees to be residents of the City.”
An applicant may not live in Our Town but be willing to move should she or he get the job. So this ad is not properly worded and could be a problem if it turns out that the language is code for “other kinds of people need not apply.”
If everyone (or a majority) of Our Town’s population are of one ethnic or religious group, this could be interpreted as an illegal discriminatory ad. This ad should not be run.
Surgeon General’s Warning: Smoking Causes Lung Cancer, Heart Disease, Emphysema, & May Complicate Pregnancy.
Surgeon General’s Warning: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health
Surgeon General’s Warning: Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight.
Surgeon General’s Warning: Cigarette Smoke Contains Carbon Monoxide.
The warnings are to be rotated quarterly by the advertiser.
No. Only advertising paid for by manufacturers or importers of cigarettes must place the warning on their advertisements. However, beware of co-op dollars going to your customer. If the customer has received money from the manufacture for advertising purposes then the warnings must appear.
We’ll take the last one first.
Charitable gaming advertising “shall include all of the following information: (a) The name of the licensee, (b) The license number, (c) The purpose for which the net proceeds will be used.” Anything else is OK as long as the price of the ad doesn’t exceed 3 percent of the revenue from the event. The ad can be any size, may include pictures and can be in color. You can put it on the front page of your newspaper if you want.
As for alcohol, “there shall not be advertising of alcoholic liquor connected with offering a prize or award on the completion of a contest, except upon prior written approval of the Liquor Control Commission. Advertising material which does not contain the name of a retail licensee and does not have a secondary value, but explains the production, sale, or consumption of alcoholic liquor may be published and distributed in this state. Alcoholic liquor recipe literature which does not contain the name of a retail licensee may be published and distributed in this state.”
You can’t show someone drinking beer, wine or spirits, and the ad cannot make any claims that alcohol improves physical performance. Putting the price in an ad is OK.
Tobacco ads must have the Surgeon General’s warning in a white box bounded by black lines in type that is at least 50 percent greater than any body copy or at least 10 points whichever is greater.
Yes, you can. Federal law says that “The flag should never be used for advertising purposes in any manner whatsoever.” 4 USC § 8. But as you may have noticed, there are a lot of ads, not to mention T-shirts, ice buckets, wastebaskets and the like that contain Old Glory.
That’s because the statute uses the suggestive “should not” as opposed to the imperative “shall not.” You may recall that the U.S. Supreme Court has upheld the right to burn the flag as a political gesture. That certainly is something that the statute says that you should not do. But the statute is not mandatory language and there is no criminal penalty. If it were, it would probably be unconstitutional.
The statute also indicates that the flag should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard.
But many of us will celebrate the 4th of July, sitting on a cushion emblazoned with the American Flag, eating potato chips out of a bag with the flag across it, wiping our collective mouths with a paper disposal napkin that contains the American flag and drinking lemonade from a paper cup that has a flag on it for decoration.
In short, there is no prohibition to the use of Old Glory in advertising. The statute does not prohibit the use of the flag in advertising. Instead it merely makes the suggestion. So use Old Glory at your discretion.
For the complete U.S. Code for treatment of the flag, visit www.ushistory.org/betsy/flagetiq.html.
Yes - within certain limits. It is a federal crime to photograph money, postage stamps and other obligations of the United States or even a foreign government. However, there is an exception for publications which are in black and white and which are less than ¾ or more than 1-1/2 the size of the original. The statute also requires the destruction of the negatives or plates used to make the illustrations after final use. 18 USC 504.
Maybe. Both the words “Super Bowl” and the logo are trademarks. While they can be used in editorial copy, you must pay licensing fees to use them in conjunction with any advertising promotion.
The NFL is very aggressive in tracking down violations, and employs “spotters” to look for unauthorized uses of the words or logo. Even a seemingly innocuous reference to a Super Bowl sale is in violation if proper fees are not paid.
A merchant selling products that have already been licensed by the NFL can promote the sale of these items in advertising, provided the appropriate wording is used. For instance, the Super Bowl beer sponsor can be described as the “official beer sponsor” but not as the “official beer.”
Maybe. The words “Final Four” and “March Madness” are among the National Collegiate Athletic Association’s list of registered trademarks. The unauthorized use of these and other words registered by the NCAA could lead to legal action.
In conjunction with its championships, the NCAA has developed licensing and marketing programs that make use of its trademarks and championships marks. Such programs are carefully controlled and aggressively protected to be consistent with the purposes and objectives of the NCAA. Any direct or indirect usage of the NCAA’s championships, tickets or marks/logos (including references to the name of the NCAA championship) requires prior written consent of the NCAA and its corporate marketing staff.
Federal regulations support the NCAA’s efforts to prohibit the unauthorized use of the NCAA’s name and trademarks, or any use of NCAA championship tickets in sweepstakes, promotions or contests or any other unfair attempt to associate with or exploit the goodwill of any NCAA championship event.
A merchant selling products that have already been licensed by the NCAA to official corporate partners or merchandise licensees can promote the sale of these items in advertising, provided the appropriate wording is used, and the advertising is submitted by the NCAA corporate partner to the NCAA corporate marketing staff for approval.
Not a problem! A newspaper can refuse to run an ad at any time. If you have taken the advertiser’s money, you have to return the money. The newspaper is responsible for the content of an ad, so they always have the right to reject. You can run into trouble if you accept money and wait until the last moment to cancel and there is no other alternative for them to advertise in a timely fashion.
However, even then there generally is no place in town to run an ad that is as effective as the newspaper. So whether you turn them down on day one or right before the event, they still have no recourse.
Just because you ran an ad once does not mean you are obligated to run it again.
You don’t even have to give a reason. Just decline to run the ad. If the advertiser pushes really hard for a reason, tell them that your attorney said you should decline the ad. That’s all you say!
The Michigan Supreme Court held in Bloss v Federated Publication, 380 Mich. 485 (1968) that: "...The business of publishing a newspaper is strictly private enterprise and ... the publisher thereof is under no legal obligation to sell advertising to all who would buy it."
The Court ruling establishes the point that a newspaper need not accept any advertising it does not want to print except for ads in one category. Once you are sure that the ad is not refused as part of an agreement which is in restraint of trade, you have every right to control, edit, run or refuse advertising. Sometimes, would-be advertisers, usually transient in the nature of their business, try to bully newspapers into accepting ads.
The best thing to do is to tell such people you do not want to print their ads; that is your right to do so ... and nothing else.
Restraint of trade comes into the issue when there is agreement between a newspaper and its advertisers that the newspaper will not accept competitor's advertising, so all newspapers should be careful never to enter into such agreements. Except where restraint of trade is involved, no newspaper need ever accept for publication an advertisement it does not welcome.
Yes - the same words that are problematic for housing are also a problem in employment ads. However, newspapers are not liable for employment ads although we do recommend helping out our customers. See above for the Fair Housing Word and Phrase List.
Summary: Do not publish advertising that discriminates or indicates a preference on the basis of: Race, Sex, Color, Religion, National Origin, Age, Height and Weight, Marital Status, Familial Status, Handicap and Arrest Record.