February 2008 - Rick Petry

For Entertainment Purposes Only

“Do not drive with ball stuck on head,” warns a disclaimer during a recent Jack-in-the-Box TV ad. In the spot, a fast-food enthusiast without a car antenna has affixed a Jack character ornament to his forehead with a suction cup. It is a testament to society’s litigious furor that virtually every commercial these days comes replete with overcooked legal warnings bound to strain the logic of any reasonable person. Then again, this is the era of Liebeck v. McDonald’s Restaurants, where a jury awarded a woman who spilled scalding coffee on herself $2.9 million. Now my latte comes with a warning that the steaming beverage I am blowing on is hot, making me think twice about wedging that cup between my legs, even though it gets cold here in the Pacific Northwest.

This propensity by marketers to cover their backsides with legalese may be a by-product of our YouTube age, where the most dangerous Jackass-inspired stunts are doomed to be repeated by adolescents wired by testosterone and a penchant for 15 minutes of fame. And all in a period where shame has ceased to exist, replaced by marketing opportunities, where a line from an Oval Office sex scandal leads to a line of designer handbags. It is the height of irony then, that our zeal for political correctness also seems to play a role in this conspiracy to over-regulate.

No category of direct marketing suffers more from governmental insistence on comprehensive disclaimers than the pharmaceutical industry. A typical disclaimer goes something like this: “Product X may sort of have a benefit if you suffer from the condition we’ve outlined, however, some of the folks willing to bet the farm on our pill experience cotton mouth, internal bleeding and deformed children. Oh, did I mention blindness?” I’m not making light of class-action plaintiffs who have suffered from dangerous prescription drugs; I’m just saying if the government can’t agree to a bit more balance in these ads, then why allow these products on the market in the first place? Given the amount pharmaceutical companies invest in R&D to manufacture a new drug and the window they have to secure a consumer base before generics are introduced, it would seem these everything-but-the-kitchen-sink disclaimers would sink any prospect of success. (Unless it’s a Viagra tablet they’re rolling up the hill.)

As the feds continue to evaluate testimonials and disclaimers, I hope principles of fairness, personal responsibility and common sense prevail. Those of us who are marketers are consumers and parents, too, so the sword of caveat emptor cuts both ways. Otherwise, I fear a downward spiral of stupidity will overwhelm the ad industry and that the Jeep commercial featuring a chorus of animals will include the warning, “Attempting to teach a squirrel to sing “Rock Me Gently’ may result in rabies contraction.” I’m sure you can come up with your own examples of such excess, but I caution you. I’m a professional. Do not attempt.

Rick Petry is the immediate past chair of ERA and a freelance writer and consultant. He can be reached at (503) 740-9065, or via e-mail at [email protected].


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