Under the Influence with Terry O'Reilly - S8E23 - The Risk in the Asterisk: Fine Print & Advertising Disclaimers

Episode Date: June 6, 2019

This week, we unpack the nuanced world of Advertising Disclaimers. We’ll look at the most absurd product disclaimers of all time, why a shocking disclaimer on a brand of Lays chips sparked a 50% drop in sales and the Presidential attack ads that changed political disclaimers forever. It really puts the “risk” in asterisk. Hope you’ll join us.  Hosted on Acast. See acast.com/privacy for more information.

Hi, it's Terry O'Reilly. As you may know, we've been producing a lot of bonus episodes while under the influences on hiatus. They're called the Beatleology Interviews, where I talk to people who knew the Beatles, work with them, love them, and the authors who write about them. Well, the Beatleology Interviews have become a hit, so we are spinning it out to be a standalone podcast series. You've already heard conversations with people like actors Mark Hamill, Malcolm McDowell, and Beatles confidant Astrid Kershaw. But coming up, I talk to May Pang, who dated John Lennon in the mid-70s. I talk to double fantasy guitarist Earl Slick, Apple Records creative director John Kosh. I'll be talking to Jan Hayworth,

who designed the Sgt. Pepper album cover. Very cool. And I'll talk to singer Dion, who is one of only five people still alive who were on the Sgt. Pepper cover. And two of those people were Beatles. The stories they tell are amazing. So thank you for making this series such a success. And please, do me a favor, follow the Beatleology interviews on your podcast app. You don't even have to be a huge Beatles fan, you just have to love storytelling.

Subscribe now, and don't miss a single beat. From the Under the Influence digital box set, this episode is from Season 8, 2019. You're under the influence with Terry O'Reilly. That's a few seconds of a theme song from a sitcom. Bet you guessed it immediately. The theme from The Big Bang Theory was written by Ed Robertson of the Barenaked Ladies. The band was performing in L.A., and Ed ad-libbed a song about the universe on stage that night,

which was inspired by a book he had just read called The Big Bang, The Origin of the Universe by Simon Singh. Unbeknownst to Ed Robertson, sitcom creator Chuck Lorre was in the audience. That's when he decided to ask the Barenaked Ladies

to record the theme song to the new sitcom he was developing called The Big Bang Theory. Ed wrote it in the shower one day, exactly one half hour before he was scheduled to play it over the phone to Chuck Lorre. Lorre loved it, and the rest is sitcom history.

The Big Bang Theory will go down in history as one of the highest-rated, most-loved sitcoms of all time. Nearly 18 million people tuned in to the series finale. Over its 12-year run, the show contained lots of little Easter eggs and ongoing gags that loyal fans loved. But one of the most interesting occurred at the end of every episode. Right after the credits, a quick card with some writing on it would flash by. The card would only last one second, not nearly long enough to read it. At first glance, it looked like fine print, like a typical network disclaimer.

But it wasn't. It was a message from Chuck Lorre. Lorre wrote a different message at the end of every single episode of The Big Bang Theory. As a matter of fact, he wrote those one-second cards at the end of all the sitcoms he created beginning in 1995, including Grace Under Fire, Two and a Half Men, Mike and Molly, and Dharma and Greg. Here's the very first card Lorre wrote for the end of the first Dharma and Greg episode. Thanks for videotaping Dharma and Greg and for freeze-framing on my video card. Then he went on to muse that the law of karma didn't apply to people in Hollywood because good things happen to bad people all the time.

He said Larry was the most underrated of the Three Stooges. He believed beer was a gateway drug that led to vodka. He said what doesn't kill us makes us bitter. And he said when the network reads this card, he was going to be in big trouble. Card number 412 at the end of Two and a Half Men said, Do not attempt to replicate what you saw in tonight's episode of Two and a Half Men. Despite the seeming lack of serious consequences,

and regardless of the hilarity that ensued, this is extremely dangerous behavior that could result in injury or death. Please keep in mind that we employ a highly paid Hollywood professional who has years of experience with putting his life at risk. And sadly, no, I'm not talking about our stuntman. Clearly, he wasn't above taking a jab at his leading man, Charlie Sheen. Another card just said,

Nothing to read here. Move along. Still another listed the words that confused the CBS censors, like cockamamie, kumquat, insertion, rectify, gherkin, titter, dickbutkus, and the always bewildering lickety-split. That one was actually censored by the network's censors. The cards contained Lori's philosophy of life, his failings, his kids, his health,

and he even wrote his own 457-word eulogy in a one-second card. He eventually collected 333 of his split-second messages, including the censored ones, and compiled them into a big coffee table book with a title stolen from his very first Dharma and Greg card, What Doesn't Kill You Makes You Bitter. In the foreword of that book, Chuck Lorre explains his vanity card mission. It was to use primetime television to chronicle an unraveling life and unraveling career in subliminal, one-second, hard-to-read increments.

The advertising industry has its own version of nearly subliminal, one-second, hard-to-read increments. They're called disclaimers. Disclaimers are the asterisks on the promise. They are the fine print conditions of the offer, the caveats to the sale price. As singer Tom Waits once said, What the large print giveth, the small print taketh away. Disclaimers are often mandated by regulatory bodies,

and they are sometimes added by nervous advertisers afraid of lawsuits. Sometimes the fine print makes you laugh out loud, and sometimes the disclaimer just doesn't work. As Chuck Lorre says in card number 481, if you want certainty, try accounting. You're under the influence. The history of disclaimers in fine print is hard to find. Kind of like fine print itself.

The mentions of fine print seem to hop, skip and jump throughout history. The Oxford English Dictionary dates the first use of the term fine print to 1960. However, the 1939 edition of a Detroit magazine ran an article entitled The Importance of Reading Fine Print. And in case law books, you can find courtroom testimony from 1892 where a lawyer asked a witness if he had seen the fine print in an insurance policy.

The witness, by the way, said no. Buyer beware. Or maybe it should be, buyer be bespectacled. The rules and regulations around disclaimers and fine print are rooted in the Combines Investigation Act of 1889 in Canada and the Sherman Antitrust Act of 1890 in the U.S. Both contain misleading advertising provisions. Today, advertising regulations are overseen by agencies like the FTC or Federal Trade Commission

and the FDA, the Food and Drug Administration in the U.S., and the CRTC and ad standards in Canada. But the disclaimers in fine print we've come to know really took hold in the 60s and 70s, when consumer activism emerged. Whether an ad or commercial contains a disclaimer or requires fine print is determined by two criteria. If the claim is material, which is to say, if it incites people to take serious actions,

or if the claim involves health or safety or financing terms, a disclaimer will be mandated. If the claim is immaterial, which means it isn't serious, but the claim could still be misinterpreted or leave the company open to a lawsuit, the advertiser's legal department may insist on a disclaimer. The claims that do not require substantiation are classified as puffing, which is defined as a statement of exaggeration that is so outrageous, reasonable people would not rely on the claim to make their purchase. But in a world that has become a litigation lottery, advertisers take extreme care to cover their high knees, and the resulting disclaimers can be very amusing. We've all seen the regular, often-used disclaimers in the world of advertising,

such as, some assembly required, results may vary, or batteries not included. But some are truly amusing, like my favorite, if you have an erection lasting more than four hours,

see a doctor. I assume that visit will be made during hour five. The fine print on a Vidal Sassoon 1500 watt hair dryer said, do not use while sleeping. The disclaimer on a popular steam iron said, do not iron clothes on body. I tried that once. Not good? No. The tag on a piece

of children's clothing says, wash inside out. Remove child before washing. A sticker on a baby stroller said, remove child

before folding. The disclaimer on a microwave oven manual stated in bold type, do not use for drying pets. When Apple came out with the small iPod Shuffle, the fine print in the instructions said,

Do not eat iPod Shuffle. There was a brand of Bluetooth speaker phones for cars called Jabra Drive and Talk. The disclaimer on the package said, Never operate your speaker phone while driving. The disclaimer on the package said, The fine print in the instructions for an electric drill said, This product not intended for use as a dental drill. A big sticker on a brand of farm tractor said, And a brand name chainsaw comes with the disclaimer, Sound advice, really. And a brand-name chainsaw comes with the disclaimer, do not attempt to stop chain with hands or genitals.

Sound advice, really. Car and truck commercials are notorious for their disclaimers. We've all seen dozens of car commercials where the vehicle is being driven well beyond any reasonable speed limit and the usual disclaimer is do not attempt

professional driver on closed course. There is a Mazda car commercial on television in high rotation that shows a woman floating in the air while holding onto

a small red party balloon. She floats up over the city, through the clouds, and even floats through a tunnel. The disclaimer? Do not attempt. Okay. A Super Bowl commercial in 2008 showed a Ford F-150 truck being spun around dramatically

on a giant centrifuge machine at a massive testing facility, all to show the strength of its tow hooks. The disclaimer? Close centrifuge. Do not attempt. Bad news for open centrifuge owners. One GMC commercial shows a Sierra truck driving straight up a vertical skyscraper,

then jumping from rooftop to rooftop above a busy city. The disclaimer? Fictionalization. Yet, not long ago, a TV commercial showed what looked like smartphone video of a Nissan Frontier truck pushing a stranded dune buggy up a very steep sand dune. The midsize Nissan Frontier with full-size horsepower and torque. The disclaimer said, fictionalization, do not attempt. However, Nissan was ordered to pull the commercial. The FTC said the ad made the truck appear capable of doing something it can't do. In other words, the quick disclaimer was not enough.

There is another form of disclaimer being used these days. While many are small or quick so they're easy to miss, some advertisers use funny disclaimers hoping you will notice them. In one Ford commercial, for example, the vehicle accelerates to such a high speed it actually becomes airborne. The disclaimer says, fictionalization, do not attempt,

closed airspace, professional pilot. Seriously, cars can't fly. In a Fiat commercial designed to say the Fiat 500L is bigger than you think, Godzilla picks up the car and tries to eat it.

But he gags and spits it out. The disclaimer? Didn't actually happen. A Nissan commercial shows a car doing crazy figure eights at excessive speeds,

leaving black tire marks crisscrossing the pavement. The disclaimer? You will never be allowed to do this on a test drive. Ever. While introducing humor can make disclaimers more palatable, there are definitely some that make the product less palatable. To see behind the scenes of Under the Influence, follow us on Twitter and Instagram at Terry O'Influence.

For a master episode list, go to terryoreilly.ca. And we'll be right back after this message. In 1998, Frito-Lay introduced a new brand of chips called Wow. Wow chips were a big deal in the snack food world because they were entirely fat-free. A dream come true for chip lovers. Bags flew off the shelves, doing $400 million in sales in the first year. But as the chips became more and more popular, more and more people began reading the bag.

In fine print on the package, a tiny disclaimer said, This product contains Olestra. Olestra may cause loose stools. Pardon? You see, as it turns out, Olestra was a key ingredient in making Wow Chips fat-free. It's a fat substitute approved by the FDA that replaced traditional cooking oil, and Frito-Lay was one of the first companies to use it. Olestra prevents the body from absorbing certain fat-soluble vitamins and nutrients.

In other words, they pass right through you and don't stick to your hips. However, may cause loose stools is not a particularly appetizing thing to read on the food you're about to eat. Bags may have flown off the shelves that first year, but they also sent customers flying to the bathroom. Sales dropped by 50% two years later. Time magazine ranked Olestra as one of the 50 worst inventions of all time, really putting the ow in the wow.

There are certain rules when it comes to disclaimers and fine print. Perhaps the biggest is the disclaimer cannot contradict the main message. So a diet supplement can't say you'll lose 10 pounds without exercising than have fine print saying, exercise required. We in the ad industry refer to the fine print in ads as

mouse type. Even though mouse type suggests small words, regulations say disclaimers must be legible on print ads, in television commercials, and online. Spoken disclaimers on radio and television commercials are called tags, or legalese,

in the ad biz. However, regulators don't really specify what font size to use or how slow a tag must be read. Therefore, we see a lot of teeny type on TV commercials and some land speed records broken on radio tags.

Like this. Void where prohibited. Must be 18 or older to play. Reasonable facsimile accepted. Not to be taken internally. Offer ends July 31st. See dealer for details. Forbes stated in a recent article that less than one person in a thousand reads the fine print before clicking I agree on e-commerce sites. And if someone has to click twice to see those terms, only one in 10,000 will do it.

Some research suggests hearing the risks in a disclaimer actually increases the viewer's belief in the advertising. That's the irony of fine print. Disclaimers are huge asterisks on an offer. But hearing or seeing asterisks can make people believe the offer is more valid. Which brings us to politicians. When election time rolls around, commercial breaks become peppered with political attack ads. But politicians taking jabs at each other isn't a new concept.

In fact, during the 1800 presidential election, Thomas Jefferson's campaign allegedly called President John Adams a, quote, hideous, hermaphroditical character, which has neither the force and firmness of a man nor the gentleness and sensibility of a woman. Saucy. But what is relatively new to the world of American politics is the disclaimer at the end of modern political ads.

In 1988, a controversial attack ad aired comparing George H.W. Bush against Michael Dukakis on the subject of the death penalty, using the story of African-American prison inmate Willie Horton. Bush and Dukakis on crime. Bush supports the death penalty for first-degree murderers. Dukakis not only opposes the death penalty, he allowed first-degree murderers to have weekend passes from prison. One was Willie Horton, who murdered a boy in a robbery, stabbing him 19 times. The ad would go down as one of the most racist and divisive political ads in history.

When Bush Sr. and his campaign were confronted about the commercial, they claimed they had no affiliation with the ad whatsoever. Over the next decade, attack ads continued to air without attribution to specific politicians, including anonymous attack ads against a Democratic Senate candidate named Ron Wyden. When Wyden won his race, he put forward a law called Stand Behind Your Ad, which required political commercials to feature disclaimers that clearly connected

the candidate to the ad. The law ultimately passed and took effect by the 2004 presidential election, meaning by the time George W. Bush ran for president against John Kerry, it was the first time the world would hear this line. I'm George W. Bush, and I approve this message. A full circle moment.

In Canada, new rules for the upcoming election state, online platforms that accept political advertising have to set up special ad registries that include copies of the ad and the name of the person who authorized them. If you're looking for flexible workouts, Peloton's got you covered. Summer runs or playoff season meditations, whatever your vibe, Peloton has thousands of classes built to push you.

We know how life goes. New father, new routines, new locations. What matters is that you have something there to adapt with you, whether you need a challenge or rest. And Peloton has everything you need, whenever you need it. Find your push. Find your power. Peloton. Visit Peloton at onepeloton.ca. Have you ever looked at the disclaimer on your box of Q-tips? It says, do not insert swab into ear canal.

Hands up if you regularly insert swab into ear canal. Yep, it's one of the most ignored product disclaimers in our homes. But when it comes to disclaimers, nobody beats the pharmaceutical industry, which is a heavy advertising category. As a matter of fact, TV viewers see up to nine drug ads per day. Here's a montage of disclaimers John Oliver played on his TV show recently.

Serious side effects may happen, including pancreatitis. Common side effects are nausea, diarrhea, vomiting, decreased appetite, chest pain, shortness of breath, diarrhea, severe stomach pain or tenderness. Tiredness, loss of appetite, stomach pain, and bleeding or bruising more easily than normal. Aggression, hostility, agitation, depressed mood. Dizziness, cough, vomiting, weakness, or ankle swelling. Other side effects include gas, stomach area pain, sleepwalking, or allergic and skin reactions, which can be life-threatening. It may cause your skin to temporarily turn yellow or orange. Larger pain for breasts, problems breathing while sleeping, and blood clots in the legs.

Blood clots that can lead to death have also occurred. Extreme fatigue, constipation, excessive thirst or urine, swollen ankles, loss of appetite, rash, itching, headache, confusion, hallucinations. You may have noticed the long litany of side effects only appears on American drug commercials. That's because direct-to-consumer prescription drug advertising that allows product claims is only permitted in two countries in the world, the U.S. and New Zealand. The FDA oversees pharma advertising in the U.S. While it rescinded the moratorium on prescription advertising in 1985, it does insist on something called fair balance. That means all side effects must be given the same amount of time as the benefits. By 2002, 98% of Americans said they had seen or heard a commercial for a prescription drug.

Of those, over 30% had talked to their doctors about the drug and asked for a prescription. Surprisingly, the long list of side effects isn't scaring people away. There are two reasons why the litany of side effects disclaimers might not be discouraging people. One is that the list is too detailed. The FDA is now wondering if the exhaustive lists of minor side effects are actually overwhelming people, leading them to miss the serious side effects. The second reason is that a long list of side effects might convince people the drug is strong,

and sometimes strong may be interpreted as good. Take Chantix. It's a drug that claims to help people stop smoking. Smokers know the habit is incredibly difficult to break, so a strong drug might be appealing. Some people have had changes in behavior, hostility, agitation, depressed mood, and suicidal thoughts or actions while taking or after stopping Chantix. If you notice agitation, hostility, depression, or changes in behavior, thinking, or mood that are not typical for you,

or if you develop suicidal thoughts or actions, stop taking Chantix and call your doctor right away. Whew, that is one long list of possible side effects. As a result of all these concerns, the FDA has proposed new guidelines saying drug companies only have to list the most serious and common side effects. The hope is that the simplified list will make it easier to retain the information about the serious dangers. In other words, to put a spotlight on the biggest risks in the asterisks. Caveat emptor is the Latin term for let the buyer beware. Or in less Latin-y words, read the fine print.

But in the world of marketing, there is also caveat venditor, meaning let the seller beware. Mandated disclaimers are there to protect the customer, but just as many disclaimers are there to protect the advertiser. It's an odd double-edged sword. We all know it's smart to read the fine print before we buy something or agree to website terms or commit to long-term financing. But so few of us take the time. In Georgia, a person won $10,000 after she discovered the reward hidden in the terms and conditions of an insurance policy. The company put it there to remind people

it pays to read the fine print. Conversely, 22,000 people signed up to get free public Wi-Fi in England only to discover they had inadvertently agreed to do 1,000 hours of community service, which included

cleaning toilets and sewer blockages. You never know what you'll find in the mouse type. It's also interesting to see humor sneak into disclaimers. You may say disclaimers are serious business

with no place for humor. But I'll push back and say humorous disclaimers make you pay attention. And if history has taught us anything, attention should be paid to disclaimers and fine print in all the corners of our lives. Because you never want to ignore a costly asterisk. And you never want to accidentally iron your clothes while you're wearing them.

When you're under the influence. I'm Terry O'Reilly. Zip, zip, zip, zip. This episode was recorded in the Terrastream Mobile Recording Studio. Producer, Debbie O'Reilly. Sound Engineer, Keith Ullman. Theme music by Ari Posner and Ian Lefevre. Research, Jillian Gora. Thank you. episode 17. You'll find it free in our archives wherever you download your podcasts. See you next week. Under the influence. They cause the following

symptoms. Itchy rashes, full body hair loss, projectile vomiting, gigantic eyeball, the condition known as hot dog fingers. Um, do you wear clothes

when you listen to our show? If so, have we got a t-shirt for you? Go to terryoreilly.ca slash shop.