7 Suggestions for Writing Compliant Marketing Copy
As the old joke has it, you’re not a professional marketer until you’ve had at least one screaming argument with a lawyer.
Every five years or so, one of our clients gets a warning letter from a government agency. The letter states that our client is violating one of 10 million rules the agency made up out of thin air with zero input from Congress or any other legislative body.
This usually results in the client going to their attorneys and then having a thorough review of their marketing materials.
Some of our clients have gone through this again in recent years. For our financial clients, this means that some of the basic rules of copywriting we all learned from the masters – from John Caples and Joe Sugarman to Gary Halbert and Clayton Makepeace – now must be modified or, in some cases, jettisoned altogether.
So, here is a quick list of 7 suggestions for writing (more) compliant copy (at least according to some lawyers).
Of course, we ourselves are not lawyers and this should NOT be construed as legal advice, only as dubious hearsay. Please check with your own legal counsel.
Suggestion #1: Avoid using “you” as it’s too persuasive.
This is a rule or suggestion we all truly hate.
Every beginning copywriter learns that you should direct your message to your specific prospect, a You, and address in your marketing his or her problems, concerns, hopes, dreams and objections.
The problem is, the government has now concluded that this is actually too persuasive – and therefore is “problematic” in many situations.
Speaking to the prospect directly conveys the false perception that you, the marketer, have a solution to their specific problem. Which may not be true in actual fact.
For our compliance-seeking clients, this meant we had to go through all of their marketing materials and change “you” to something more vague – such as “investors” or “those who suffer from back pain.”
For example, in the past we would have written, “I’d like to tell you about a little-known income investment that pays a remarkable 11% yield monthly.” Now we must change that to say, “There’s a little-known income investment that pays a remarkable 11% yield monthly.” No “you” there.
In the past, we would have written, “If you’re suffering from persistent low-back pain that keeps you up at night, then you’ll be interested in a new study that shows that 78% of lower back pain is due to muscular strains that can be treated topically, not due to a slipped disc requiring surgery.”
Now we have to write, “Anyone suffering from persistent low-back pain that keeps them up at night might be interested in...”
Suggestion #2: Don’t say something will help, only that you believe it could help.
Everything must be conditional. As one lawyer put it, “You can’t in any way imply that your solution will actually help.”
Great. In actual practice, this means that the marketer has to present their product or service as a possible solution, not a definite solution.
You just can’t imply that it will help, only could help.
Yes, weaselly as hell... but that’s what lawyers get paid for.
I won’t get philosophical, but lawyers’ entire livelihood depends on the ambiguity and vagueness inherent in natural languages. They get paid to make precise what is normally vague.
Everything must be qualified. “In my opinion.” “I believe that.” “Our research suggests.”
Suggestion #3: Don’t say or imply that your prospects’ lives will be improved by your product or service.
In the old days, we called this “future-pacing,” painting a picture of how great a prospect’s life would be once their problem was solved.
Think of how great it will be to play with your grandkids once your chronic knee pain is relieved!
Imagine what it would be like not having to worry about money anymore!
All that is out.
Can’t claim to improve a prospect’s life. Subscribing to your trading newsletter won’t mean that readers will be able to take their spouses on a dream cruise, or help with college tuition.
Also, the government really doesn’t like it when you criticize the government.
You can’t say or imply that government policies will make people’s lives worse. That’s deceptive, according to the government.
Suggestion #4: Don’t use examples of past successes or testimonials without providing a full accounting of your total record.
This is known as “cherry picking,” of course, and government regulators hate this.
You can cite some examples of what your product or service has achieved so long as you follow it up with a comprehensive summary of actual results – which is difficult for many businesses to do.
For financial clients such as investment advisors, you can provide some examples of winning stock picks or winning trades. But every time you do this, it must be followed up by a thorough summary of the complete track record.
Here’s a recent example of what regulators want to see if you insist on using examples of winning trades:
Joe Blow option trader made winning trade after winning trade last month:
447.3% in 41 days on ABC Stock...
301.81% in 43 days on DEF Stock...
243.94% in 70 days on GHI Stock
256.90% in 28 days on JKL Stock...
282.1% in 35 days on MNO Stock...
298% in 70 days on PQR Stock...
Of course, past performance is no guarantee of future results – and investors [not YOU!] should only trade options with money they can afford to lose.
Plus, not all of Joe Blow’s recommendations in Acme Option Trader are triple-digit winners, or even winners at all.
Since May 15, 2015, when the service began, Blow’s 681 closed option trades have averaged a gain of 21% with an average win rate of 77% and an average holding time on all closed investments of 62 days. That works out to an average annualized return of 34%.
Suggestion #5: Don’t use superlatives: “best,” “most profitable,” “easiest,” “healthiest”
Not “the best” but “one of the best”.
Not, “Anybody can do it.” Rather, “many people can do it.”
Suggestion #6: Don’t lie – especially about false scarcity.
Of course, you shouldn’t lie anyway... unless you’re a lawyer or a president and it depends what the meaning of “is” is.
You can’t say, “the first 50 to sign up” will receive this product or “only 35 accepted are today” unless it’s true.
(You can have a deadline if and only if it’s actually enforced, as in, “Sign up before this offer expires at midnight on May 15th.”
Also, you shouldn’t use artificially inflated “regular” prices unless you can prove you actually sell a product or service for that price.
For example, if a newsletter normally sells for $99 and you have a promotion for $49, that’s okay... but you better have the newsletter advertised for $99.
Same with premiums. If you’re offering a special report for free that retails for $79, then you have to sell it on your website for $79.
Suggestion #7: Don’t rely on conditionals: “could, potential, would or perhaps.”
In the old days, copywriters and marketers figured that if they simply used words like “potential” or “could,” this would somehow protect them like a magic talisman.
These days, apparently, they don’t.
Saying that by subscribing to Joe Blow’s stock newsletter, investors could “potentially” make a small fortune trading stocks is the same as saying investors will make a small fortune trading stocks – at least in the eyes of regulators.
Yes, this conflicts somewhat with what we said in Suggestion #2 above, but they are different. Suggestion #2 is about always qualifying claims with your own perspective, as in, “I believe” or “our research suggests,” instead of stating a claim as an uncontested fact.
This rule simply means that merely making a claim conditional doesn’t automatically provide protection from accusations that you’re being deceptive.
Summary
Okay, so all this is the bad news.
Marketing is now and always has been a highly regulated enterprise. And thanks to the Internet, everything can now be and often is monitored.
Many marketers follow all of these suggestions to the letter. Others ignore them as ridiculous.
The decision about just how “compliant” the marketing is or should be is a business decision that every company makes on its own. Outside marketing consultants or copywriters usually just follow their lead.
Some companies push things to the limit. Others decide to be “mostly” or half compliant. It’s a judgment call.
The good news is that marketers and copywriters can, with a little work, live with these rules or suggestions and not hurt sales.
The suggestions above can force companies to think long and hard about what precisely they are offering to prospects – and what prospects can realistically expect.
No, you can no longer promise to make people rich – or heal whatever ails them.
But you can promise to give them some interesting ideas about investments that you believe, or your research suggests, could be profitable.
In other words: we can convey much of the same messaging but with slightly more precise language that maybe creates more realistic expectations.
Yes, it’s a pain in the ass. But it’s just yet another cost of doing business in the current year.
As with A.I., cryptocurrency and other technological developments, marketers simply adapt to the new environment.
After a while, it’s not that bad.
Robert Henderson is a veteran copywriter and marketing consultant. You can see samples of his recent work here and can send him an email at: copy@swissmail.org.
If you have a marketing or copywriting project you’d like to discuss in more detail, please start by making an appointment here.