Disclaimers: A Slick Way to Kind of Tell the Truth

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In 2013, Pakistan’s Tribune newspaper reported that a Pakistani family can spend the equivalent of $9,600 to provide a marriage dowry for a daughter – a fortune in a country where the average annual per capita income is $1,200. Sons, on the other hand, occupy the catbird seat. For them, no dowry payments, just an expectation that they care for parents into old age. “We always knew we wanted a boy! . . .”

“In Pakistan, India, and China, son preference is perpetuated by both men and women,” said Dr. Anita Raj, director at the Center on Gender Equity and a health professor at the Division of Global Public Health, Department of Medicine at the University of California, in San Diego, quoted in a report from the International Business Times. “Data from the region [indicates] that about one in four women would prefer to have more sons than daughters.”

In places where the birth of a female child creates outcomes far more dire than what color to paint the nursery, the verb prefer shrouds the draconian choices parents face. And it obscures how vulnerable they are to commercial exploitation. Wherever you find desperate consumers, you find purveyors of snake oil, gleefully willing to take their money – and more.

One vendor, Indian yoga guru Baba Ramdev, developed a nutritional supplement he named Divya Putrajeevak. Putrajeevak, a Sanskrit word meaning “son’s life,” provides a distinct marketing advantage – no need to guess why. You can buy it on Amazon. “A unique herbal product, Putrajeevak seed is beneficial for female reproductive health. Dosage: Make a fine powder of both Putrajeevak seed (Beek), take an hour before breakfast & dinner,” Amazon’s product description helpfully informs us.

But just below it, the first review hints at a dark story. “This product is for health of female reproductive organs. Nothing more. Some people confuse it as for conceiving boy child but it’s due to the naming in Sanskrit,” this customer writes, adding, “This is a reputed herb in Ayurveda. Use as directed. I have used it personally. But please refrain from using after conception. This herb is for before conception.” I scroll to the next review: “This is 100% quackery. Please don’t buy any of the items Baba Ramdev is selling! He doesn’t have any scientific basis to make all these claims.”

The claims this writer refers to were made in India, where the pitch to sell ‘Divya Putrajeevak Seed’ unrepentantly includes the promise of conceiving male offspring. According to an article in eninews24online.com, “The medicine also created a uproar in Rajya Sabha [India’s Council of States] . . . after Indian Member of Parliment KC Tyagi flashed a packet labelled ‘Putrajeewak Beej’ (son-bearing seeds).” Ugh. First of all . . . please don’t call this product medicine!

To save space, I’ll dispense with a biological explanation for how gender gets determined in humans. You can read about it here. Suffice to say, I couldn’t find any credible research offering proof that eating, drinking, or smoking Divya Putrajeevak seed means diddly squat toward producing the all-important boy-bearing XY chromosome.

Right here, you might be thinking, “Sounds like this product needs a disclaimer.” You are right. Following this brouhaha in India, a spokesperson for the company that sells Divya Putrajeevak seed announced that the product packaging will disclaim exactly what the product name implies.

“It is for women, and has no relation with sex determination.”

Problem- solved! Now, in South Asia, destitute consumers and others at the brink of financial disaster can buy “son-bearing seeds,” but without the misapprehension that the product will help them conceive a male child. Please let me know if this doesn’t make sense.

Here in the US of A, we have plenty of our own mishegoss. For example, in 2015, law firms spent $128 million on 365,000 ads like this: “This is a legal alert for the users of Xarelto. Lawyers are reviewing claims that the blood-thinning drug can cause severe bleeding or hemorrhaging, stroke or even death. You may have a case . . .”

If you use Xarelto, could this ad make you a tad skittish? In a survey conducted by the US Chamber Institute for Legal Reform, “25% of patients said they would stop taking their medication immediately if they saw an advertisement regarding litigation over the drug,” Lisa A. Rickard wrote in an August, 2016 Washington Post article, How Lawyers Scare People Out of Taking Meds.

According to Rickard, the chamber organization’s president, “Ads like these often include extensive descriptions of serious adverse reactions with little context about how common these side effects are. They routinely mimic public-service announcements, claiming to be a ‘medical alert’ or an ‘FDA warning.’ Most don’t disclose that the ad is for lawyers until the final few seconds. One researcher sampled these promotions and found that only 39% warned viewers to consult a doctor before stopping a drug (emphasis, mine). Many that did ran that advisory in very small print.”

“Lawyers argue that these ads are an important part of the work they do fighting for people injured by faulty drugs or devices . . . lawsuits offer victims opportunities for justice,” Rickard wrote. But without regulations, these alarmist ads create their own “public health risk” – the term Albert Einstein College of Medicine cardiologist Evan Levine used to describe the problem. I’m with him.

Since 1962, The US Food and Drug Administration has had “complete oversight over prescription drug advertisements,” Rickard wrote. “Similar regulations could be developed for legal ads . . . lawyer medical ads should remind viewers to consult their doctors before they stop taking their medications. Another option: The ads could include some kind of disclaimer noting that only a small percentage of people may have had an adverse reaction to a specific drug. All claims should be backed by science, and not exaggerate risks.”

When I read that passage, I did a double-take, because I assumed that such sensible disclaimers were already mandatory. Nein! So, don’t buy the popular bombast that politicians regularly hurl about “cutting regulation and rolling back bureaucratic red tape.” To me, this example demonstrates that without Government Nannies, humans would be nearly extinct.

Companies use disclaimers to avoid allegations of mendacity, or when regulators force them to. Disclaimers are disavowals, a simple shorthand for communicating, “We flamboyantly distort facts so you will see things the way we want you to see them. In case that causes a problem, here’s a half-hearted smattering of contradictory information.”

Some disclaimers are so common that we barely pay attention. “Your mileage might vary . . .” . . . “Certain restrictions apply . . .” “Enlarged to show detail.” Others are ironically funny. In a January, 2015, Wall Street Journal article, Advertising Hyperbole Is Best Found in the Disclaimer, Shirley Wang wrote, “On the big trucks featuring three giant cups of [Dannon’s] Oikos brand Greek Yogurt in Times Square recently, there was a message repeated in several places: ‘not representative of product.’ IKEA stresses on several-foot-high signs that hang from the rafters of some stores that the mammoth picture of its beef hot dog is ‘not actual size.’ And online ads for Dermitage, a skin product that touts ‘less wrinkles in only minutes,’ have shown half the face of a woman with smooth skin and the other half with serious wrinkles, noting that it was ‘simulated imagery.’ No, they don’t think you are an idiot.”

“How weight-loss companies fake those before-and-after photos. Pictures are airbrushed, borrowed and stolen,” the UK’s Daily Mail reported. No kidding! Another prime opportunity for a well-crafted disclaimer. The one that the diet regimen Paleo Plan uses, “never disregard professional medical advice or delay in seeking it because of something you have read on this website,” could not be more encompassing. Good to know.

In September, 2014, the US Federal Trade Commission (FTC) took up the honesty cause through Operation Full Disclosure , a program designed to prevent companies from misleading consumers. The project began with the FTC contacting 60 companies, including 20 of the 100 largest US advertisers. Among the distortions that the agency wanted to thwart:

• ads that quoted the price of a product or service, but did not adequately disclose the conditions for obtaining that price

• ads that failed to disclose automatic billing

• ads that claimed a product capability or that an accessory was included, but did not adequately disclose the prerequisite to own or buy an additional product or service

• ads that claimed a uniqueness or superior feature for a product in a certain category, but did not adequately disclose how narrowly the advertiser defined the category

• ads that promoted a “risk-free” or “worry free” trial period, but did not adequately disclose that consumers would need to pay for initial and/or return shipping

• ads that made absolute or otherwise broad statements and had inadequate disclosures explaining exceptions or limitations

• ads for weight-loss solutions featuring testimonials claiming outlier results that did not adequately disclose the weight loss that consumers generally could expect to achieve

• ads that did not adequately disclose issues related to the safety or legality of a product or service

• ads that included a demonstration that was materially altered, but did not adequately disclose the alteration

and finally,

• ads that made false claims that the advertisers attempted to cure with contradictory disclosures, which are not sufficient to prevent ads from being deceptive

That factual distortions exist in marketing should surprise no one. But the transgressions the FTC has targeted are particularly corrosive – even dangerous. “The FTC’s longstanding guidance to companies is that disclosures in their ads should be close to the claims to which they relate – not hidden or buried in unrelated details – and they should appear in a font that is easy to read and in a shade that stands out against the background. Disclosures for television ads should be on the screen long enough to be noticed, read, and understood, and other elements in the ads should not obscure or distract from the disclosures.” It’s hard to argue that the FTC’s recommendations are bad.

The FTC has also developed guidelines for digital media: “If a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous. Under the new guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view the ad. The new guidance also explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate a Commission rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used.”

Disclaimers have a useful purpose, but they seem an awkward way to backpedal toward the truth. A tacit admission of deception. “Please be aware that what you likely heard me say is not necessarily accurate or correct.” Companies want to be thought of as “truthful and honest.” They see profound purpose in “educating customers.” Sales managers pride themselves on having reps who are “trusted advisors.” Disclaimers, in effect, tell customers that what they have been told, shown, or made to believe isn’t exactly as it seems.

As Wall Street Journal columnist Holman W. Jenkins described it in a recent column about Donald Trump, (Trump Runs Against Both Parties, August 10, 2016), “When you tell the public untruths, in Mr. Trump’s understanding of business, that’s marketing.”

Disclaimers, to the rescue!

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