Testimonials must relate to the product advertised and claims in a testimonial that are likely to be interpreted as factual must not mislead or be likely to mislead the consumer (Rules 3.46 and 3.47). Marketers may not use testimonials to circumvent the Code by making claims in a consumer review that they would not otherwise be permitted to make. For example, if a marketer doesn’t hold the evidence to substantiate an efficacy claim, they cannot use a testimonial which makes that claim.
Testimonials alone do not constitute substantiation so marketers should not rely on testimonials as support for any direct or implied claims made in the marketing communication. Although it acknowledged that a testimonial which made implied claims that a topically applied gel could have similar effects to surgery might have been a genuinely held opinion, the ASA held it breached the Code because the marketer did not provide objective evidence to show the product was an effective alternative to surgery (Rodial Ltd, 11 January 2012). Customer survey responses which made positive comments about saving money on energy bills were not considered adequate substantiation for savings claims (Bright Networks Ltd t/a Bright Heating, 9 January 2013).
The ASA upheld complaints against a testimonial which described a individual’s theory regarding “hexagonal water” because it considered consumers would interpret the claims as being in relation to a theory based on evidence, particularly because it appeared to be endorsed by a scientist (Water for Health Ltd, 3 July 2013).
Marketers using a testimonial must hold evidence that it is genuine. This requirement has two elements; i.e. that the quote is from a real person and that it reflects what they said.
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How many times have business owners thought in these times of recession it would not be prudent to spend on a full time in house lawyer or a law firm charged too much and that there were smart enough to get their own contracts done or settle their disputes? The mistake many make is to not realise when a helping hand and prevention can be better than cure.
Take for instance the client whose over enthusiastic sales person confirms via email or telephone the details of a sale and payment terms for a deal worth £10,000/- and begins delivery of the service before buyer checks are done or terms and conditions signed off by a lawyer . There then arises a dispute and misunderstanding on the terms and the buyer refuses to pay. The business finally decides to write off the debt thinking going to court may be too expensive and risky as there is no proper proof of the agreed deal and realises too late that the buyer (debtor) has actually not provided proper details of the business name and the phone number provided is dead . On later searching the debtor the business is informed it is a company with no assets and thus any legal action with the best of lawyers will be fruitless.
Just keeping a lawyer in the loop on what was going on or setting up routine protocol would have resulted in first checking the credibility and details of the client and ensuring the buyer business could afford the purchase as no sale is a sale until the cash is realised. Next going through the contract deliverables and ensuring clarity in timing, rate and terms and finally ensuring the authorised person had signed would have resulted in a £10,000 richer seller.
Another example can be of the disgruntled employee who may often not have a clear cut contract or may raise a grievance. The employer might ignore the issue hoping it will go away. The employee instead resigns and sues the company . Would it not have been more advisable to involve a lawyer who is familiar with your business and employment rights from the start so that employee contracts are checked to ensure they cover the business, the grievance is addressed and nipped in the bud and the company maintains policies ,resulting in happy employees and subsequent great performance for the company?
The third scenario could be a company hiring some staff who are on student visas and flouting the rules as they have been too busy to check them and want to save costs or have not maintained the required paperwork and this results in a large fine from the Home Office and bad publicity.
If you think your business needs a helping hand get in touch for a free initial consultation or audit on what your business needs are . You will be surprised how easy and cost effective it can be to retain a consultant inhouse legal service provider who forms an extension of your team , is available at quick notice, understands your business needs and provides proactive advice.