GETTING YOUR COMMERCIAL ON THE AIR

by Michael J. McSunas

The major television networks and local television stations each have established guidelines and standards that advertisers must meet when preparing commercial messages for broadcast.  These guidelines and standards are in addition to any standards imposed by federal or state law or the Federal Trade Commission (the "FTC").

For some types of advertising, the networks follow rules and guidelines established by the FTC; however, the networks may impose additional requirements or regulate products not specifically addressed by the FTC.  The guidelines for each of the networks typically impose standards for the following types of advertising or products: comparative advertising; endorsements and testimonials; guarantees and warranties; mail order and direct response offers; premiums, offers, and contests; price/savings claims; advertising directed to children, with specific requirements for toys, premiums, food and motion pictures; food; alcoholic beverages; medical products; "new" products; and weight reduction, among others.  Further, each network has its own "taste" standards.  The networks exercise broad discretion to approve or disapprove commercials based on taste considerations.  The networks may also refuse to approve a commercial that shows an activity that the network deems unsafe (e.g., showing a toddler standing on a chair).  The standards on such taste and safety standards vary greatly.  What one network may approve, another may not.

Local television stations (whether they are network affiliates or independent) generally do not have set guidelines and procedures for screening commercials.  The local stations will usually reject a commercial only if they consider it distasteful or for legal issues (e.g., you slander a competitor).  Local stations use varying standards when deciding what is "tasteful."  Most rely on the community standards.  Accordingly, what might be acceptable to air in Miami may not be acceptable in Chattanooga.  Further, the owners/management of the local station most likely have their own taste standards.  For example, some local stations will not air any alcohol (including beer) commercials.  Overall, though, local television stations are generally more lenient than the networks when it comes to clearance for your commercial.

Local television stations give clearance to commercials only after the commercial has been produced; there usually is no pre-production clearance procedure.  For a commercial that is to be aired on one of the broadcast networks, it is best to begin the clearance process as soon as you have a storyboard or script.  It is also a good idea to run the scripts and storyboard by your counsel first.  Your counsel will be able to spot potential problems and save you time and money in the long run. 

The initial network review typically takes between two and five days.  The network should be supplied with as much information as possible.  For instance, is the commercial for adults' scheduling or children's scheduling?  The networks each have very specific guidelines for advertising directed at children.  After an initial review, you may receive a "status report" from the network in which you may be asked for additional information or documentation.  The most common request is for claim substantiation.  If you are claiming that your product is "the best selling widget," then you must produce documentation to prove your claim.  Other requests may include product samples, labeling for new products and notarized producer's affidavits for demonstrations.  The network then reviews the information and/or documentation submitted in response to the Status Report and within three to five days issues a follow up report. At this time, an additional request for information or revisions may be made.  Accordingly, it is important to involve the network clearance department as early in the process as possible.

Once all substantiation is reviewed and the storyboard or script is approved, the commercial is ready to be produced.  You should make sure you have approval from all of the networks prior to start of production.  Expensive editing costs can be avoided if the aforementioned procedures are followed.

Once the spot has been produced, the networks will ask for a final, slated video cassette (unfortunately, some networks require ¾ inch video tape and others require ½ inch tape).  The networks also require two final, as produced scripts.

Review and approval by a network, however, does not ensure legal compliance.  Thus, other advertisers may still challenge the content of the commercial (e.g, competitors may say your commercial is deceptive or makes unsubstantiated claims).  Some networks hear challenges brought by other advertisers or advertising agencies in accordance with established formal procedures.  Other networks hear challenges informally.  Further, competitors may initiate a challenge before the National Advertising Division of the Council of Better Business Bureaus ("NAD").  NAD is a self-regulatory board where advertisers can challenge their competitors' advertising.  After giving the advertiser the opportunity to respond to the challenge, NAD issues a decision either finding that the claims are substantiated or recommending that the advertising be modified.  Compliance with NAD decisions is voluntary.  Your competitors could also challenge your commercial by requesting that the FTC or the state Attorney General initiate action against you or by filing a Lanham Act suit in federal court seeking damages and an injunction to prevent you from airing the commercial.

The process of developing a commercial from an idea to a finished product involves a detailed approval process.  However, by involving your counsel early on and carefully following the guidelines established by television networks and local stations, you are ensuring that this process will be as smooth as possible.

If you have any questions about this or other related topics, please contact a member of our Advertising & Promotional Law Group.

This is an advertisement.  Certification as a Specialist in Advertising Law by the Tennessee Commission on Continuing Legal Education and Specialization is not currently available.  None of the attorneys listed in this communication are certified in any area of Specialization.

© 2002 Chambliss, Bahner & Stophel, P.C.