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March 19, 2015

Is BOGO a No Go?

In the past week, we have received multiple inquiries regarding buy one, get one free offers as advertised online, on TV and via IVR.  Can marketers still advertise BOGO products?  Can a bonus item be offered as free?  Can additional processing fees still be charged?  The short answer to all of these questions is yes.

Although some disclosures need to be more conspicuous than they once were, BOGO offers still generally have the green light.  That being said, there are two main points to be aware of: (1) the use of the word "free" (especially with a modifier such as "absolutely") and (2) P&H disclosures. 

First, the use of the word "free" could earn you some unwanted attention from the FTC and/or state Attorneys General.  Even though the only cost for the item may be processing and handling, thus the item itself is technically free, the word can still land you in hot water.  This is because the charges for P&H are sometimes as costly as the product itself and may not be refundable if the product is returned.  We suggest using your savvy marketing skills to come up with alternative language to convey the point.  Not so creatively, for example, "we will also send you this second [product], just pay additional processing and handling." 

This leads us to our second warning about P&H disclosures.  Processing and handling fees need to be on the screen in the commercial (preferably vocalized as well), on the order page of the website, and in a confirmation email to the consumer.  

Here are a few rules of thumb every marketer should know: 

Digital Law Group has extensive experience in marketing compliance and has worked with state Attorneys General regarding product marketing.  

Email Jessica to schedule your FREE consultation.   

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Paula Brillson Phillips

Meet Digital Law Group's Managing Partner, Paula Brillson Phillips. Paula is licensed in New York and has a background in industrial psychology. She has been in private practice since 2006. 

Paula has counseled entrepreneurs, e-retailers, brand developers, distributors and tech/telecom companies on a wide variety of legal and internal matters.  

Prior to joining DLG, Paula served as lead counsel to many pioneer companies in the technology sector both in the US and in Asia. She was on the forefront of telecom deregulation initiatives at the FCC, serving as International Regulatory Counsel to MCI. She spent 8 years in Hong Kong working with esteemed companies such as MCI International, PCCW/Beyond the Network as well as pioneering her Internet "start-up," Asia Capacity Exchange. 

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Digital Law Group

Providing business-critical legal services to startups and growth companies in a wide range of corporate, commercial, Internet and intellectual property law matters. We treat your business as our business by helping you to achieve better, smarter and more efficient results that exceed your expectations, not your budget.  

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