© 2001 Door & Access Systems
Publish Date: Winter 2001
Author: Tom Wadsworth
By Naomi Angel, DASMA Legal Counsel
In this competitive world of marketing, manufacturers and dealers seek ways to increase the sales of their products. One of these methods is to make advertising statements that claim a product will operate in a safe and reliable manner. If the statements prove untrue, the manufacturer or dealer can be legally liable to the buyer.
If a dealer shows a customer a garage door sample, the buying customer must receive a door that looks and is constructed like the model. If the door doesn’t conform, the manufacturer or dealer can again be legally liable .
A Guarantee or A Warranty?
By definition, a "guarantee" is an assurance of product quality, and a "warranty" is an assurance of after-sale repair or replacement. These words are often used interchangeably.
Consumers understand these terms to mean that the manufacturer or retailer stands behind the product. A statement doesn't have to be called a warranty or guarantee to be legally treated as such. And it doesn't have to be part of a formal written contract either.
Statements made in product literature, advertisements, or orally by sales people can constitute binding warranties. However, expressions of the seller's opinion or his recommendations about a product do not create an expressed warranty.
A declaration that "you’ll be using it for a long time" would be considered an opinion, not a promise or statement of fact. On the other hand, telling the buyer that the product is "unconditionally guaranteed for life" could expose the seller to considerable liability.
Examine the product claims in your company's advertising and marketing materials. Be alert to dangerous and clichéd words. Many common terms and phrases, overused in advertising articles, begin to resemble warranties and guarantees.
Using ambiguous descriptive terms can be detrimental in the product liability arena. Pay particular attention to literature the consumer or user receives; review it for complete and accurate information on the safe use of the product.
- "Ensure." Avoid advertising statements that "ensure" safety. Manufacturers can make safe product even safer, but they cannot guarantee safety. "Ensure" implies "guarantee," and unless that's what you intend to do, it's best to avoid that verb in written materials.
- Vague Comparisons. Avoid comparing your product or service by using vague and general terms that do not refer to tangible or measurable performance characteristics. Examples: "Best," "better," "strongest," "fastest," "most efficient," etc. You must be able to substantiate your claims.
- "Fully Covered." Avoid expressions such as "fully covered" or "fully guaranteed" without providing a clear definition of the scope of the guarantee.
- "Lifetime." Don’t offer long-term guarantees unless they are practical to fulfill. A statement of limitation should accompany a "lifetime guarantee" in order to avoid raising unreasonable expectations in the minds of consumers.
- A Discouraging Word. Disparaging a competitor’s products, either expressly or by implication, isn’t good for you or the industry. Such marketing techniques are often misleading and can backfire, inviting legal action by a competitor.
- "And More." Ending a list in "and more" promises everything and reveals nothing. It’s vague, unnecessary filler and could create an expectation of guarantee for the gullible reader.
- Saying "Available" when it's not. If the items mentioned in your advertising materials are not available, don't advertise them. Make sure that your advertised products are available as represented. If there are limitations, say so.
- "New and Improved." If you claim that something is "new," "improved," or "enhanced," you must be able to demonstrate that the product has changed significantly. Avoid using "new" to describe products that are more than six months old. Be sure that your language does not mislead the consumer.
- "Fabulous Prices." Avoid overstated expressions such as "fabulous prices" to indicate good value. Such exaggeration often lacks a reasonable basis for the claim and can be misleading. Advertisers shouldn't hide in flamboyant phrases to avoid more precise and informative statements as to why a particular offer represents good value.
Finally, if you have specific questions or concerns about your product literature and representations, consult your company's legal counsel for guidance.
Naomi Angel is DASMA's legal counsel. She is experienced in product liability issues at the Chicago law firm of McBride Baker & Coles.
This article is provided solely for informational purposes and does not constitute legal advice.