Marketing legal review: A checklist of words and phrases to avoid, with some safer alternatives

Over the years I’ve often had occasion to review clients’ press releases, advertisements, and similar materials for potential legal issues. If you can think of any words and phrases to add to either of the lists below, feel free to suggest them in the comment section.

Background: Too-strong wording in marketing materials can cause legal problems

The first list below contains a set of words and phrases that are often too strong, too “categorical” in nature. Conceivably, they can result in legal problems down the road. Here’s an example of a “categorical” statement:

HYPOTHETICAL ADVERTISEMENT: Our WhizBang™ vacuum cleaner will sweep up every particle of dirt on your floor.

And here’s a useful rule of thumb to go with it: All categorical statements are bad — including this one.

Why are categorical statements usually a bad idea? For three main reasons:

• First, con­ceiv­ably such too-strong words and phrases could be accused of being misleading, and perhaps amounting to false advertising, if they’re not literally true. That could bring on a false-advertising lawsuit from a competitor.

TRUE STORY: U-Haul once sued a rival truck rental company for false advertising. The reason: Drawings in the rival company’s newspaper ad­vert­ise­ments showed incorrect dimensions for the company’s trucks — that is, the ads showed bigger trucks than the rival company actually had available for rental. U-Haul was awarded $40 million in damages, an amount based on the estimated cost of a corrective-ad­vert­i­sing cam­paign. See U-haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034 (9th Cir. 1986) (affirming district-court judgment in pertinent part).

• Second, too-strong words and phrases might also raise the performance bar for your company’s prod­ucts or services more than you might like. If something were to go wrong with one of your products (let’s say), and then it turned out that the product didn’t actually measure up to your too-strong “categorical” statement, that fact might have undue influence on a judge or jury.

Let’s look again at the hypothetical advertisement above for a WhizBang vacuum cleaner. Suppose that in reality the WhizBang vacuum cleaner always left some particles of dirt behind — and now suppose that those left-over particles later caused someone to have a fatal asthma attack. What effect might the categorical statement in the advertisement have upon a judge or jury? Does including the “every particle of dirt” language really do that much to improve the effectiveness of the advertisement?

• Finally, if you use superlatives about your product or service, and then later on you figure out how to do it even better, someone could claim that your earlier product or service didn’t deserve the superlative after all (because you yourself managed to outdo it), and so why should they trust you now?

HYPOTHETICAL EXAMPLE: Your brochure for your new widget says that the widget was designed to take up the minimum possible space. Later, though, your engineers figure out how to shrink your widget even further. What does that say about your earlier brochure? (The same could be true for part count, etc.)

List 1: Safer alternatives to some too-strong words and phrases

The words and phrases in the list below might never cause you any prob­lems. First, they might be literally true. Second, even if they’re weren’t literally true, they might still be legally defensible as puffery.

But why take the chance? It’s been my observation that too-strong words and phrases seldom seem to add that much value to a press release or marketing brochure. Purging them from your marketing vocabulary can be cheap insurance to help avoid the expense of having someone else drag you into a legal dispute.

The following list of too-strong “categorical statements” isn’t exhaustive, of course, nor can it be a substitute for legal review, but it should prove helpful in drafting your marketing pieces:

• Avoid: Allow, as in, our widget allows you to be more efficient
  Try instead: our widget helps you to be more efficient
• Avoid: Avoid (!) as in, avoid having someone else drag you into a legal dispute
  Try instead: Help to avoid; guard against; reduce the chances of; try to avoid
• Avoid: Complete, as in, complete support for your needs
  Try instead: Extensive
• Avoid: Crucial, as in, doing X is crucial for your comfort and safety
  Try instead: Important; beneficial
• Avoid: Eliminate, as in, the WhizBang air filter eliminates odors
  Try instead: Reduce; control; help to eliminate; largely eliminates problems; essentially eliminates problems; virtually eliminates problems
• Avoid: Ensure, as in, our system ensures high performance
  Try instead: Offer; provide; helps to ensure; promotes; supports
• Avoid: -free, as in, our widget is maintenance-free (really?)
  Try instead: Reduced; decreased; less; easier
• Avoid: Highest, as in, our widgets meet the highest quality standards
  Try instead: Our widgets have been designed to meet our high quality standards
• Avoid: Immediately, as in, our tech support reps will immediately answer your phone call
  Try instead: Promptly; quickly
• Avoid: Maximum, as in, the WhizBang coffee gives you maximum flavor
  Try instead: Added; superior; enhanced (or greatly-enhanced); exceptional; excellent; better; substantial — or, helps to maximize
• Avoid: Minimize, as in, the WhizBang storage pouch minimizes wasted food
  Try instead: Reduce; helps to minimize; see also eliminate
• Avoid: Minimum, as in, we drain your pool with minimum spillage
  Try instead: Low; reduced; better
• Avoid: No effect, as in, the WhizBang low-calorie beverage will have no effect on your waist line
  Try instead: Little or no effect
• Avoid: Optimize, as in, let our skilled technicians optimize your car’s performance
  Try instead: Fine-tune; improve; enhance
• Avoid: Optimized for, as in, our WhizBang motor oil is optimized for zero-degree weather
  Try instead: Designed for; configured for; well-suited for
• Avoid: Prevent, as in, prevent someone else from suing you
  See avoid
• Avoid: -proof, as in, fireproof, waterproof, tamper-proof
  Try instead: Fire-retardant, fire-resistant
• Avoid: Protect against or from as in, our widget will protect your gadget from hurricanes
  Try instead: Help protect
• Avoid: Resolve, as in, our tech-support staff will resolve your issue within four hours
  Try instead: Address your issue; tackle it; dig into it
• Avoid: Safe, as in, the WhizBang spot remover is safe to use on leather fabrics
  Try instead: Gentle; reliable; safer [than something else]
• Avoid: Solve, as in, the WhizBang clothing spray solves the problem of static cling
  Try instead: Attack the problem; tackle it; address it
• Avoid: Unique, as in, this is a unique feature of the WhizBang gadget
  Try instead: Noteworthy; remarkable; outstanding

List 2: Good wording – usually safe to use (if true)

And here’s a list of words that generally have sufficient “wiggle room” that they’ll ordinarily be safe to use, as long as they’re true:

• Advanced
• Convenient
• Cost-effective
• Economical
• Efficient
• Enhanced, as in enhanced performance
• Excellent
• Flexible
• Helps — good for softening almost any too-categorical word, e.g., helps ensure that your roof won’t leak
• High-quality
• High-throughput
• Innovative
• Large selection
• Reliable
• Robust
• Simple
• Superior
• Variety, as in, offers a variety of choices
• Versatile; highly versatile
• Wide range; or, wide selection, as in, offers a wide range of choices