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August 17, 2017
Could Ad Agencies Be Liable for Lying Clients?
Marketers love to make claims, and our industry rarely verifies them
A recent Adweek article caught my eye. It seems a St. Louis ad agency that has had Monsanto as a longtime client is being sued for fraud, named as co-defendant along with the agricultural company.
According to the St. Louis Business Journal, the complaint essentially states that “Osborn Barr handled marketing for Roundup products from 1990 to 2012 in which it represented the product as safe to humans and the environment, despite knowing for decades that Monsanto falsely advertises Roundup's safety.”
The case is still pending. In a motion to dismiss, the agency claimed precedents have shown that outside firms like ad agencies are not subject to liability for simply promoting a defective product.
I can’t imagine that attaching an agency to a suit aimed primarily at a client like Monsanto has any merit. But I’m not a lawyer. Still, it’s worth examining the role ad agencies play in touting their clients’ products.
As advertising and marketing professionals, we want to believe our clients. That their product or service does something better, if not something truly good.
But does that mean we have to swallow everything they tell us? What if, even in a side conversation, they admit they’re making unsubstantiated claims or exaggerated benefits? Are we complicit in perpetuating falsehoods? When is the time to speak up?
I was once handed a massive Excel spreadsheet from a major consumer electronics company that had lengthy list of “claims” we needed to use in the marketing materials. Some of the claims were sourced from company-sponsored studies and others were simply invented and labeled  “puffery.”
Obviously, the client thought inserting these claims would put its product superiority in a flattering light. But in reality, the overall effect diluted the work and cheapened the brand because they rang hollow. They felt like a relic of a bygone era of advertising. However, I never questioned the veracity of the claims. No one at the agency did. It was the agency’s largest account, after all.
I wonder how often agency people give their clients pushback like, “You know, you can’t say that in an ad” or “You really shouldn’t make that claim.” Because from time to time, we’re asked to incorporate some very dubious messaging into our work.
But should we be the ones who verify them? We do, often, have to sign confidentiality agreements when given proprietary information about our clients and their products. So it would be conceivable that yes, we have access to knowledge of clients’ illegal acts, dubious claims, or unethical practices. Could someone at an agency act as a whistleblower when presented with blatant falsehoods? Has it ever happened?
As it turns out, our unquestioning acceptance of what our clients tell us is a long-standing tradition. History is filled with products and services advertising promoted that eventually turned out to be harmful. Asbestos. Cigarettes. Thalidomide. Perhaps the ad agencies working on the business didn’t know otherwise at the time. Still, they did their jobs and sold the products using whatever claims they conjured up or were told to use.
That creative license still exists today. Plenty of marketers, led by their CEOs and Board of Directors, see nothing wrong with saying whatever they can legally get away with in their advertising to sell their products. It’s better to beg forgiveness than ask permission.
And ad agencies are happy to play along. But let’s assume the lawsuit against Osborn Barr had some merit. It would be, to put it in a way, a slippery slope. Could ad agencies be held liable in the future for damage done by cigarettes? Sugary sodas? Pharmaceutical products? Household cleaners?
It’s scary because any legal action is a distraction. The last thing ad agencies need is legal culpability for the work they do based on a client’s claims, particularly since clients have the ultimate say by approving and paying for such work. It might come down to “What did the agency know, and when did it know it?”
I suppose it’s no surprise that in a lot of big marketing efforts, we’ve moved away from the type of advertising that makes outlandish, or even basic, promises. We’ve moved to aspirational, emotional appeals with our work. In a way, it’s safer because we don’t have to substantiate or prove anything tangible about what we’re selling.
But a lot of advertisers and marketers still tout that proverbial better mousetrap. Claiming that drug or chemical is safe. Promoting health benefits that sound amazingly enticing.
And while ad agencies largely don’t have the capacity to independently verify anything, we should insist that clients provide the proof, or back off from making claims in the advertising that aren’t sound. Ad agencies and marketing firms are striving to be that vaunted business partner that’s treated like an equal. If that’s the case, the scrutiny we give our clients’ products and services, and the messaging around them, will be apropos and justified.
Otherwise, we’ll be making space in our open offices for the lawyers. We’re gonna need ‘em.

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Since 2002, Dan Goldgeier has been writing the most provocative advertising columns about advertising and marketing -- over 170 of them, covering every related topic you can think of. Now based in Seattle, Dan is a copywriter and ad school graduate who's worked at shops big and small. 

Visit his copywriting websitesee his LinkedIn profile or follow him on Twitter.

And please, buy his book for 99 cents.


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