RUSS RIDDLE, JD, has practiced intellectual
property law for 27 years. He is vice-chair of the
Speaker Editorial Committee, a member of the NSA
Board of Directors, immediate past chair of the Chapter
Leadership Committee, and a past president of the
North Texas Chapter.
content isn’t misconstrued as creating a client
relationship. Your profession’s code of ethics may
even mandate it.
Your chosen niche expertise or particular
portions of your marketing content also might
be subject to Federal Trade Commission (FTC)
regulations and/or guidelines.
For example, the Code of Federal Regulations
[ 16 CFR Part 255.2 (b)] includes a section that
states, “An advertisement containing an endorsement relating the experience of one or more consumers on a central or key attribute of the product
or service also will likely be interpreted as representing that the endorser’s experience is representative of what consumers will generally achieve with
the advertised product or service in actual, albeit
variable, conditions of use. Therefore, an advertiser
should possess and rely upon adequate substantiation for this representation. If the advertiser does
not have substantiation that the endorser’s experience is representative of what consumers will
generally achieve, the advertisement should clearly
and conspicuously disclose the generally expected
performance in the depicted circumstances, and
the advertiser must possess and rely on adequate
substantiation for that representation.
Do any of your speaking testimonials need
disclaimers? Depends on what they say.
Do event contracts you’re signing require you
to promote the conference in social media? The
FTC guidelines [ 16 CFR Part 255.1] advise disclosure of arrangements of compensation being
received, even in part, for that endorsement. The
FTC’s overarching concern is being up-front with
DISCLAIM BY CHOICE
Are you a coach or consultant? Consider including
disclaimers in your agreements, reports, and other
writings that unambiguously clarify that your role
is to support and assist the client in obtaining their
goals, but ultimate success depends upon their
personal effort, motivation, commitment, and follow-through; that you
cannot predict and do not guarantee they will attain a particular result; and
that results differ for everyone, depending upon their unique background,
dedication, desire, motivation, actions and numerous other factors.
Do you have ads or third-party links on your business site? If those
third parties mess up in the marketplace, might you be vicariously liable
if the aggrieved party found and engaged them via your site? Consider a
disclaimer of their acts and omissions.
Perhaps you offer e-learning videos, audio, and downloadable written
materials for a subscription fee. Paid clients expect to access and view
your content at their leisure 24/7. If connectivity becomes problematic,
what’s your liability? Consider including a disclaimer that your team
will exert commercially reasonable efforts to ensure access to the online
learning portal. However, users implicitly understand that access to
the portal may be affected by local market telecommunication network
activity, capacity of and compatibility with third-party communication
equipment, and internet access software and browsers; and that you
disclaim, and users waive, all claims of responsibility by you for any such
service interruptions outside your control.
Bottom line, some disclaimers are well advised. Others are mandated
by statute, regulation, or codes of ethics. The above are just a few examples of various scenarios. Space doesn’t permit the gamut of all disclaimer
needs. Should you use disclaimers?
Food for thought, as peanut butter does contain peanuts. ■
If you are a physician, therapist,
dietitian, or other LICENSED
PROVIDER, you would be wise to