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:
If...
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Then...
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you are offering a bonus item
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do not label it as absolutely "free"
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the consumer must accept the bonus item
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inform consumer during the checkout process
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processing and handling fees are being charged
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make them conspicuous
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the consumer places an order
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include P&H charges in the order summary
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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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