Entry 202: Attorn-ey for the Worse, Part II

Well, today all the hoopla finally ends and we get to see all the new Superbowl commercials that we haven’t already seen because the companies leaked them weeks in advance to get maximim PR mileage out of their expenditures.

It’s the perfect time to talk some more about lawyers (wait, you’ll get the connection in a second). In my previous post, I wrote about how lawyers have screwed up our society. Now I’d like to talk about how they’ve screwed up people’s livelihoods.

And by “people’s,” I mean “mine.”

Advertising is my game, and lawyers have screwed it up royally. During the “golden age” of18-Old-gold[1] advertising, when you could smoke at the office and have sex with any co-worker you damn pleased,* you could claim pretty much anything for your product without any sort of substantiation. You could say that cigarettes were healthy. You could say that the Edsel represented the automotive design of the future. You could say that white bread helped build strong bodies 8 ways. But then lawyers and regulators got involved and ruined everything. And now anything you say has to have a disclaimer.

If I’m selling a laxative, I have to tell you it could cause diarrhea. If I’m selling a sleeping pill, I have to tell you it could cause drowsiness. If I’m promoting a car lease, edsel[1]I have to spend a few seconds of my precious, expensive air time on a screen filled with small type you can’t read unless you freeze the frame, take a picture of it, scan it, enlarge it, and put it through all kinds of enhancement techniques such as you might find at the CIA.

And then there is the commercial for the Ford Fusion which aired recently. It shows the latest model driving along a curvy, cliffside road. Then it drives off the road and off the cliff and soars into the air, to demonstrate, well, I’m not sure what exactly. But when the car takes off, we see at the bottom of the screen, the following:

“Fictionalization. Professional driver on closed course. Do not attempt. Cars cannot fly.”

Now, I have to deal with corporate lawyers all the time, and I can just imagine how this disclaimer got there.wonderbread5[1]

First there was the ad agency presentation. The copywriter, art director, creative director and three “suits” from the agency assembled in a large conference room with about 20 people from Ford and presented a number of commercials.  The main client then said something to the effect of “I like the one with the cliff,” although it was hard to tell, because he had a mouthful of danish. This selection was then substantiated by approximately one dozen focus groups in at least four different cities, during which the Ford folks and the agency folks sat behind a one-way mirror and made fun of the participants.

Then the script went to the legal department. The legal department came back with their “recommendations,” which is corporate legal speak for “do this or we won’t give you more money than it took to make the entirety of at least one of this year’s Best Picture nominees to film one 30 second commercial.”

So let’s break it down.

The “Professional driver on closed course” part is automatic.  The agency likely put that in on its own. You’ll see that on any commercial that shows a car actually in motion, unless the motion is a slow revolution on a turntable. Essentially, it means that a bunch of underpaid, walkie-talkie-equipped young people desperate to get into the film industry were blocking all other traffic from that road, which was necessary because of the obligatory car commercial scene wherein the car “drifts” sideways into a turn, as if this is something we expect to be able to do with our vehicles every day.

“Fictionalization” means that what you’re watching did not really happen. This is opposed to “dramatization,” which implies that it did happen, but we’re recreating it with bad actors. By “fictionalization,” they mean that special effects were used because even a “professional driver” does not know how to make the car fly.

“Do not attempt” are three little words that absolves the company of all responsibility should someone purchase a Ford Fusion and drive it off a cliff. “Hey, we told you not to do that. Don’t sue us.”

“Cars cannot fly” tells the consumer that you cannot return your new Ford Fusion because you were stuck in traffic and could not get the car off the ground to pass above all the vehicles stuck on the Long Island Expressway, which is the only reason you chose the Fusion and not a Toyota Camry, which clearly is not designed to take to the air. It serves you right for not taking the car for a test flight before buying it.

imagesCADORZKBNote that it says “CARS cannot fly.” That’s to let you know that the lack of airworthiness is not a shortcoming of the Ford Fusion in particular, but a defect that is endemic to the entire category of objects referred to as “cars.” This is where I believe I’ve found a loophole; there is, in fact, a flying car: the Transition® by the Terrafugia company. (Although, in fairness to Ford, I don’t know if I’d be any more excited about driving a Transition off a cliff than I would a Fusion.) But that means Ford’s statement is false and potentially sue-able, if I buy a Fusion in the misguided belief that my dream of owning a vehicle with collapsible wings that I can fly into Manhattan only to discover that if I thought finding a parking spot was a problem, I should try finding a landing spot, is unachievable.

It might seem silly for Ford’s lawyers to demand such a disclaimer. But they know that if they don’t, some other lawyer, somewhere in America, will be waiting at the bottom of a canyon for some schmuck to fly off the cliff in his Ford Fusion. And then he’ll sue the bejesus out of Ford.

Which shows you that lawyers self-perpetuate. Ford needs its lawyers to anticipate the stupid things other lawyers might sue for.

One of the dumbest commercials on the air right now is for Carnival Cruises. A husband and wife (I’m assuming) are out at sea breathing the fresh salt air and he says to her “This is so much better than last year.” We then cut to them in a car, screaming, as the car is attacked by a bear and (I think) a cougar. I don’t know why Carnival is comparing its cruise to being attacked by wild animals; perhaps this is one of the few scenarios to which a Carnival cruise compares favorably.** But that’s not the point I want to make.

On the one hand, the lawyers here were pretty lenient, since they evidently did not require the ad agency to substantiate the claim that going on a Carnival cruise is, in fact, better than being besieged by large, growling, creatures. But while the couple is trapped in the car, yelling their brains out, we see the following:

“For dramatization only. Do not attempt.”

My question to the attorneys is this: What exactly is the couple attempting? It seems like they’re attempting not to get eaten by hungry carnivores. Are you telling me that if I am trapped in a car by wild animals I should not attempt to avoid being eaten? That I should basically just give up and say “Come and get it?”  Because, I’ll tell you, if I ever am in that situation and I follow your instructions, I will use my remaining hand to call my lawyer and sue you.

Speaking of cruises, I’d like to leave you with a nice example of lawyers leaving things WALL-E[1]alone.  In a recent commercial for Disney Cruise Lines, a woman is shown relaxing in a spa as a towel is brought to her by the robot from Wall-E. And I was absolutely shocked to see that there was no disclaimer to the effect of “Guests not actually served by robots.”

Therefore, it is only a matter of time before some legal eagle brings a class action suit for false advertising.

Unless…well, it is Disney after all.

Enjoy the game and the commercials. See you soon.

*Or maybe that only happened to advertising people who looked like Jon Hamm of Mad Men.

**Perhaps Carnival might want to compare itself to Congress. As I mentioned in my previous post, in a recent poll, Congress compared unfavorably to root canals and head lice, so Carnival would have a good chance at coming out on top.

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