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Is it possible to refuse an advertisement that has been allowed before?
i.e. An adult book/video store has run ads in our newspaper in the past
but recently, due to reader response, we would like to refuse their ad.
Not a problem! A newspaper can refuse to run an ad at any time. If you
have taken the advertiser’s money, you have to return the money. The
newspaper is responsible for the content of an ad, so they always have
the right to reject. You can run into trouble if you accept money and
wait until the last moment to cancel and there is no other alternative
for them to advertise in a timely fashion.
However, even then there generally is no place in town to run an ad
that is as effective as the newspaper. So whether you turn them down on
day one or right before the event, they still have no recourse.
Just because you ran an ad once does not mean you are obligated to run it again.
You don’t even have to give a reason. Just decline to run the ad. If
the advertiser pushes really hard for a reason, tell them that your
attorney said you should decline the ad. That’s all you say!
Can advertisers run “March Madness” promotions in my newspaper? The words “Final Four” and “March Madness” are among the National
Collegiate Athletic Association’s list of registered trademarks. The
unauthorized use of these and other words registered by the NCAA could
lead to legal action.
In conjunction with its championships, the NCAA has developed licensing
and marketing programs that make use of its trademarks and
championships marks. Such programs are carefully controlled and
aggressively protected to be consistent with the purposes and
objectives of the NCAA. Any direct or indirect usage of the NCAA’s
championships, tickets or marks/logos (including references to the name
of the NCAA championship) requires prior written consent of the NCAA
and its corporate marketing staff.
Federal regulations support the NCAA’s efforts to prohibit the
unauthorized use of the NCAA’s name and trademarks, or any use of NCAA
championship tickets in sweepstakes, promotions or contests or any
other unfair attempt to associate with or exploit the goodwill of any
NCAA championship event.
A merchant selling products that have already been licensed by the NCAA
to official corporate partners or merchandise licensees can promote the
sale of these items in advertising, provided the appropriate wording is
used, and the advertising is submitted by the NCAA corporate partner to
the NCAA corporate marketing staff for approval.
Are there any words that I cannot use in a newspaper? I remember
hearing about the FTC forbidding seven words from being used on the
air. Is that true for newspapers?No. Government cannot and has not forbidden the use of any words in
newspapers. The original seven forbidden words (which will not be
repeated here!) are no longer forbidden by the FCC. They were the
subject of several George Carlin monologues. But it was finally decided
that government really had no right under the First Amendment to
abridge speech.
The only area in which the law has allowed restriction on speech is in
the area of “fighting words” or language that could cause panic.
Yelling “Fire!” in a crowded theater when there is no fire is still
subject to punishment. But short of words that will incite an immediate
riot, the courts have not upheld restrictions on speech. Even a call to
riot in a newspaper is probably not punishable because the impact of
such a statement has little chance of causing immediate action.
That does not mean that an individual newspaper cannot restrict the
words used by its employees in print. Choice of language is the
province of the newspaper, but not the government.
“Wanted: two mature people who get along well with each other to work
in senior housing project. Must be willing to live on premises. No
children allowed.” Can I run this ad?No. This ad discriminates on the basis of age and possibly marital
status or familial status. Under state and federal law,
newspapers may not run employment ads that discriminate on the basis of
age. Here the ad seeks someone who is mature. That is a word that
CAN refer to age. It does not necessarily refer to age, except
that the ad says that there need to be two people and no children.
Again, who is mature and has no children? Older people. That is
age discrimination. Furthermore, given the proscription against
children, it appears that the ad is discriminating against familial
status. Therefore, the ad as written is suspect.
Can a public body run its legal notices in a shopper?A public body must run its official notices in a publication meeting
the requirements of the Michigan statutes for the publishing of legal
notices. However, if the public body chooses to run additional ads in a
shopper, there is certainly nothing wrong with that. They simply cannot
run official notices in shoppers without also running the notices in a
publication that meets the statutory definition.
A publication that is qualified to carry legal notices for public
bodies and for court proceedings and the like is a publication which
has at least 25% news content and has published at least once every
seven days, for one year if it is paid circulation, and two years if it
is a free distribution newspaper.
What is news? ‘News’ is anything that is not advertising.
How many subscribers do you need to be paid circulation? No one knows for sure.
For the kinds of notices requiring publication in a qualified
publication see “Michigan Publications Laws”, put out by MPA or www.medialawyers.com.
What are the laws on real estate agents placing ads? Do they need to include certain information in their ads?According to the regulations adopted by HUD, “all advertising of
RESIDENTIAL real estate for sale, rent, or financing should contain an
equal housing opportunity logotype, statement or slogan as a means of
educating the home-seeking public that the property is available to all
persons regardless of race, color, religion, sex, handicap, familial
status, or national origin. The choice of logotype, statement or slogan
will depend on the type of media used and in space advertising, on the
size of the advertisement.” 45 CFR 109.30.
This means that if ads for residential real estate (renting or for
sale) are placed by real estate agents or anyone else, they must have
the appropriate logo in their ad with the appropriate slogan. There are
different size logos for different size ads. For classified ads,
newspapers should have a fair housing notice at the beginning of the
real estate section. This serves as the appropriate notice for all real
estate ads in that edition of the newspaper.
For display ads, the larger the ad, the larger the logo and the slogan
should be. Smaller ads can use the symbol of the house with the short
slogan “Equal Housing Opportunity.”
For the Fair Housing Word and Phrase List, click HERE.
The local firefighters are split on their endorsement for a candidate
for mayor. There apparently is dissension in the ranks. Neither group
has formed an official committee so the question is how should the
“paid for by...” be written? (Individuals took up a collection to pay
for the ad.) We are using “paid for by members of the County
firefighters.” Is that OK?Technically since this is an individual contribution of each member,
there is no statutory requirement to print who paid for the ad. But I
recommend that you put on the ad who paid for it to be sure that you
don’t accidentally violate the law and because it makes it easier to
handle advertisers. “Newspaper policy” is hard for the advertiser to
argue about. In this case I would put “Paid for by Tom, Dick and Harry,
members of the County Firefighters.” Alternatively “Paid for by
individual members of the County Firefighters.” The Fire Department may
not use public dollars to pay for an ad. So we want to be sure that
readers know that these are not public funds being used. At the same
time I think their job position is important to the message: “Members
of the Fire Department support this candidate.”
My regular advertiser, Joe’s Bar and Grill, wants to advertise “Club
Keno every five minutes starting October 27, 2003.” Is this legal?Under the regulations of the Liquor Control Commission advertising
gambling in connection with alcohol is not permitted. Furthermore,
gambling is illegal in Michigan except for the Michigan Lottery and
certain charitable events approved by the Liquor Control Commission.
Liquor Control Regulation 436.1321 states that there shall not be
advertising of alcoholic liquor connected with offering a prove or
award on the completion of a contest, except upon prior written
approval of the commission.
436.1013 (1) says that a licensee shall not allow unlawful gambling on the licensed premises or gambling devices.
Gambling is illegal. Keno is gambling.
However, Michigan Lottery has approved a new Club Keno that runs every
5 minutes. To learn more go to: www.michigan.gov/lottery/
So Joe’s ad is okay provided that the bar has been properly licensed by the Michigan Lottery to do Club Keno.
Also be advised that Club Keno is a registered trademark of the
Michigan Lottery and can only be used in conjunction with approved Club
Keno licensees.
Can I use a picture of Bill Gates in an ad without his permission? (It’s for a local community college).NO! Currently there is a move afoot to have a national right of
publicity statute that would give all of us the right to protect our
likeness from use without our permission. But the right of publicity is
already recognized in New York and California. It is not clear what
Michigan courts would do, but you don’t want to go there. Gates gets
around enough that I am sure he would notice and not be pleased.
If he came to town and you took his picture for a news story, that is
allowed. But to use it for a commercial purpose in an ad, even for a
college, is forbidden.
The Microsoft web site does have high resolution images of Mr. Gates
(and other Microsoft VIPs), but as with all material you find on the
Web, you will need to get permission to use them before printing them
in your newspaper.
What are the rules regarding alcohol advertising?
What are the rules regarding tobacco advertising?
What are the rules about bingo and charity gaming ads?We’ll take the last one first.
Charitable gaming advertising “shall include all of the following
information: (a) The name of the licensee, (b) The license number, (c)
The purpose for which the net proceeds will be used.” Anything else is
OK as long as the price of the ad doesn’t exceed 3 percent of the
revenue from the event. The ad can be any size, may include pictures
and can be in color. You can put it on the front page of your newspaper
if you want.
As for alcohol, “there shall not be advertising of alcoholic liquor
connected with offering a prize or award on the completion of a
contest, except upon prior written approval of the Liquor Control
Commission. Advertising material which does not contain the name of a
retail licensee and does not have a secondary value, but explains the
production, sale, or consumption of alcoholic liquor may be published
and distributed in this state. Alcoholic liquor recipe literature which
does not contain the name of a retail licensee may be published and
distributed in this state.”
You can’t show someone drinking beer, wine or spirits, and the ad
cannot make any claims that alcohol improves physical performance.
Putting the price in an ad is OK.
Tobacco ads must have the Surgeon General’s warning in a white box
bounded by black lines in type that is at least 50 percent greater than
any body copy or at least 10 points whichever is greater.
If I request under OMA for notification of meetings from a
municipality, is it acceptable they just tell me they meet the first
Monday of each month at 6 p.m. or do they have to send me a notice each
time they post? They can just give you the notice of the regular meeting once. They are
required to post their regular meeting schedule at the beginning of the
year. So if they provide you with that schedule of regular meetings,
they have complied with the duty to notify you of regular meetings for
that year. However, they do have to notify you of special meetings that
occur off the regular schedule.
Do I have to run the surgeon’s general warning in every advertisement for cigarettes?No. Only advertising paid for by manufacturers or importers of
cigarettes must place the warning on their advertisements. However,
beware of coop dollars going to your customer. If the customer has
received money from the manufacture for advertising purposes then the
warnings must appear.
What are the warnings that must be placed on advertising placed or paid for by manufacturers or importers of cigarettes?Surgeon General’s Warning: Smoking Causes Lung Cancer, Heart Disease, Emphysema, & May Complicate Pregnancy.
Surgeon General’s Warning: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health
Surgeon General’s Warning: Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight.
Surgeon General’s Warning: Cigarette Smoke Contains Carbon Monoxide.
The warnings are to be rotated quarterly by the advertiser.
We have a customer who wants to print in his employment ad, “God-centered office.” What’s the law? The Michigan Elliott Larsen Civil Rights Act prohibits employers from
running ads that discriminate on the basis of religion. This includes
someone who is an atheist or an agnostic. In a case in the Michigan
Court of Appeals, the court held that religious non-belief is
protected. Therefore this ad is discouraging someone who is an atheist
or an agnostic from responding. The inference is that non-God centered
people need not apply for this position. Therefore, the ad violates the
statute.
Although there is no liability to the newspaper for running such ads,
newspapers refuse them because they do violate the law. Simply tell the
advertiser that in conformity with the Elliot Larsen Civil Rights Act,
the newspaper does not carry these kinds of ads.
If he says that he is not saying, “Don’t apply” he just wants people to
know so they won’t be “uncomfortable,” the answer is that a court would
read this ad as religious discrimination. It is illegal for such an ad
to run.
Can I use a photograph or photocopy of a dollar bill in an ad?It is a federal crime to photograph money, postage stamps and other
obligations of the United states or even a foreign government. However,
there is an exception for publications which are in black and white and
which are less than ¾ or more than 1-1/2 the size of the original. The
statute also requires the destruction of the negatives or plates used
to make the illustrations after final use. 18 USC 504.
When I make an affidavit of publication is it sufficient to attach a
photocopy of the legal ad or do I have to attach a clipping from the
paper?By Michigan statute (which is in your MPA Newspaper Publication blue
book) the affidavit must have attached to it, a printed copy of such
notice taken from the paper in which it was published. MCL 600.2126;
MCL 600.2125.
Can a public body require me to pay the amount of the FOIA fees before I receive my documents?According to a 1998 Michigan Attorney General Opinion, a public body is
allowed to require payment of the charges for a FOIA request before
turning the documents over to you. A public body can also require a
deposit before proceeding to address your request if they estimate that
the charge will exceed $50. However, they cannot require more than a
50% deposit. However, if you fail to pay the total fee for a FOIA
request, the public body cannot refuse to respond to your next FOIA
request.
A public body wants to put an advertisement in the newspaper, but it’s
not a notice required by law. Must I charge them the legal rate per
folio?No. The limitation of the folio rate is only applicable to ads ordered
by the court to be published. So if the township wants to put in an ad
for an ice cream social, you can charge your display rate.
Can I run an advertisement for the sale of fireworks?Michigan law prohibits offering fireworks for sale. MCL 750.243a states
that a person, firm, partnership, or corporation shall not offer for
sale, expose for sale, sell at retail, keep with intent to sell at
retail, possess, give, furnish, transport, use, explode, or cause to
explode fireworks. There is an exception for sparklers and the kinds of
explosive devices that remain on the ground including flat paper caps,
toy pistols, flitter sparklers, and toy snakes.
A person can get a permit to sell fireworks from local government, but
he must be a resident wholesaler and he may only sell to others who
have a permit for the same municipality. He must meet requirements set
by the State Police and provide a bond.
We recommend not accepting ads for fireworks. An advertiser can offer
for sale sparklers, toy snakes, toy pistols and flitter sparklers.
Ok, I’m confused. Can I use the American flag in an ad or not?Yes, you can. Federal law says that “The flag should never be used for
advertising purposes in any manner whatsoever.” 4 USC § 8. But as you
may have noticed, there are a lot of ads, not to mention T-shirts, ice
buckets, wastebaskets and the like that contain Old Glory.
That’s because the statute uses the suggestive “should not” as opposed
to the imperative “shall not.” You may recall that the U.S. Supreme
Court has upheld the right to burn the flag as a political gesture.
That certainly is something that the statute says that you should not
do. But the statute is not mandatory language and there is no criminal
penalty. If it were, it would probably be unconstitutional.
The statute also indicates that the flag should not be embroidered on
such articles as cushions or handkerchiefs and the like, printed or
otherwise impressed on paper napkins or boxes or anything that is
designed for temporary use and discard.
But I am certain that many of us will celebrate the 4th of July,
sitting on a cushion emblazoned with the American Flag, eating potato
chips out of a bag with the flag across it, wiping our collective
mouths with a paper disposal napkin that contains the American flag and
drinking lemonade from a paper cup that has a flag on it for
decoration.
In short, there is no prohibition to the use of Old Glory in
advertising. The statute does not prohibit the use of the flag in
advertising. Instead it merely makes the suggestion. So use Old Glory
at your discretion.
For the complete U.S. Code for treatment of the flag, visit www.ushistory.org/betsy/flagetiq.html.
Can advertisers run a “Super Bowl” promotion in our newspaper?Both the words “Super Bowl” and the logo are trademarks. While they can
be used in editorial copy, you must pay licensing fees to use them in
conjunction with any advertising promotion.
The NFL is very aggressive in tracking down violations, and employs
“spotters” to look for unauthorized uses of the words or logo. Even a
seemingly innocuous reference to a Super Bowl sale is in violation if
proper fees are not paid.
A merchant selling products that have already been licensed by the NFL
can promote the sale of these items in advertising, provided the
appropriate wording is used. For instance, the Super Bowl beer sponsor
can be described as the “official beer sponsor” but not as the
“official beer.”
We just had an employment ad placed and they want to say “Must live in Our Town.” Is this acceptable?Do not run this ad. The way it’s written makes it discriminatory. Even
if the ad is being run by a municipality that has adopted a residency
policy, it should be phrased differently: “City ordinance requires
employees to be residents of the City.”
An applicant may not live in Our Town but be willing to move should she
or he get the job. So this ad is not properly worded and could be a
problem if it turns out that the language is code for “other kinds of
people need not apply.”
If everyone (or a majority) of Our Town’s population are of one ethnic
or religious group, this could be interpreted as an illegal
discriminatory ad. This ad should not be run.
What is a folio? What is the current folio rate for “legal notice” advertisements?A “folio” is 100 words. The following rules for counting words are used by many newspaper publishers:
18th -- 3 words
2nd -- 2 words
1956 -- 4 words
27/100 -- 5 words
1/4 -- 1 word
Eleventh -- 1 word
1 initial -- 1 word
1,400.10 -- 6 words
Begin counting: “Mortgage sale”
End counting: After attorney name and address at end
Do not count: Punctuation marks
A newspaper may charge up to $15.98 per folio for the first insertion
and $6.23 per folio for each subsequent insertion. The allowed minimum
cost for a notice which must appear two times or more is $45.28, and
the allowed minimum cost for a notice which must appear once is $33.67.
In other words, a newspaper can charge for legal notices in one of two
ways. Either charge the notice using the rate per folio, or charge the
notice using the flat rate. As an example, a two-folio legal notice
that must appear once comes to your office. You can either a.) charge
$31.96 for the notice ($15.98 per folio multiplied by two folios), or
b.) charge the flat rate of $33.67.
Newspapers should also note that state law does not control the fee for
providing an affidavit of publication. Therefore, newspapers can raise
affidavit fees independent of the statutory requirements for folio
rates.
What are the disclaimers that have to be printed in political ads?The Ask MPA answer staff would like to clarify the different types of
political ads and the disclaimers that are required with each. We hope
this chart helps!
Keep in mind that nothing prevents the advertiser from including in
their ad the name and address of the person or entity paying for the
ad. Moreover, nothing prevents the newspaper from requiring that people
place in their private independent ads the name and address of the
person or persons paying for the ad. Disclaimers are not required by
law for independent expenditures i.e. expenditures that are not made by
political parties or political committees. It is our recommendation
that you have a policy that requires the name of the person paying for
the ad to be contained in the ad. This is not a matter of law but of
accountability to the newspaper and the readership.
MPA ran a question and answer from MPA General Counsel Dawn Phillips
Hertz regarding political advertising. Hertz wrote: “Check all charges
with the opposing candidate. If Candidate A says Candidate B is a
“known thespian” check with B and find out if he has been in a theater
production recently.” OK ... so it’s true. B has been in a theater production recently. Now
what? And what about gray areas? (B was indeed in a theater production
in 1981). Are we being asked to be truth mediators before publication?
You are responsible for every word that appears in an
advertisement...whether it is a political ad or a regular ad. You
always have to check.
There is more latitude in political ads but not enough to call someone
a thief. Fortunately most political ads use a lot of hyperbole. To say
that the candidate for treasurer “couldn’t figure his way out of a
paper bag with a flash light” cannot support a libel claim. To say that
the candidate “lost his last job for expense account problems” is a
defamatory statement and if it is false will subject you to liability.
I recommend that political ads be reviewed by an editor because they
usually know what dirty tricks the candidates are up to this year.
I just finished reading your answer to the question “are we being asked
to be truth mediators before publication?” Are you saying that if a
party store advertises the coldest beer in town or the best pizza in
northern Michigan that we need to check these out? That seems a bit
much doesn’t it?No you don’t have to check out those kinds of statements.
Those statements are not defamatory, i.e. derogatory. So even if they
were false, no one could say that their reputation had been damaged. If
you run an ad that says “our competitor’s beer is stale”...that is a
problem because it might cause someone not to deal with the competitor.
If the beer is not stale, you have disparaged the business and you
could be sued for lost profits. The responsibility is for anything that
ON ITS FACE is defamatory.
Anything that infers or states that a business cheats or sells stale goods or is incompetent is a problem.
On the other hand, if you advertise a housebroken puppy who promptly
does his business on the purchaser’s best rug, the newspaper is not
liable. You are not the guarantor of the products or businesses you
advertise.
But you are responsible for every word that appears in your newspaper if it is defamatory on its face.
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