There are a few times in life high-risk language is a good idea. Creating marketing content that adheres to compliance rules is definitely not one of them. Marketing and legal have a deep understanding of the power of language. Marketers know it can build trust, convey value, and drive engagement. Legal can attest that used inappropriately, it can expose businesses to significant compliance risks. High-risk language in marketing often includes terms, phrases, or claims that can be misleading, overpromise, or fail to disclose necessary information. Understanding these risks is crucial, especially in highly regulated industries such as finance, higher education, healthcare, pharmaceutical, and insurance.
What Constitutes High-Risk Language in Marketing?
As a marketing compliance platform, we detect misleading language risks in content and assets for 93% of clients. This includes superlative claims that can’t be substantiated, creating a false sense of urgency, and false representations.
Avoiding potentially false, misleading, or deceptive advertising can be complex, especially since laws and regulations vary depending on your local regulator (FINRA in the US, FCA in the UK, ACCC in Australia, etc.). But a good place to start is recognizing specific language to avoid.
High-risk language generally includes:
- Misleading Claims: Any statement that exaggerates the benefits of a product or service, or makes promises that cannot be substantiated, is considered high risk. This includes using words like “guaranteed,” “proven,” or “risk-free” without adequate evidence.
- Omission of Material Information: Failing to disclose critical information that could influence a consumer’s decision-making process is another form of high-risk language. This is particularly important in sectors where consumers rely on accurate information for their safety or financial well-being.
- Ambiguity: Vague or ambiguous language that can be interpreted in multiple ways can also pose compliance risks. For example, phrases like “up to” or “as low as” without clarifying conditions can lead to misunderstandings.
- Hyperbolic Statements: Using overly dramatic language, such as “the best,” “unbeatable,” or “the only solution,” without substantiation can be flagged as non-compliant.
- Comparative Advertising: Comparing your product directly with a competitor’s in a way that could be considered disparaging or misleading is another high-risk area.
Is High Risk Language Industry Specific?
Avoiding potentially false, misleading, or deceptive advertising can be complex, especially since laws and regulations vary depending on your local regulator (FINRA in the US, FCA in the UK, ACCC in Australia, etc.). Here are some industry specific triggers:
Finance
In the financial sector, regulatory bodies like the SEC and FINRA closely scrutinize marketing language to protect consumers from misleading or deceptive practices. High-risk language in your financial services marketing can lead to serious fines, and it happens more often than you think. In 2021, the FCA fined Lloyds Bank General Insurance Ltd. £90.7m for misleadingly using the term “competitive price” in their marketing. High-risk finance language includes:
- Guaranteed Returns: Promising fixed returns on investments is a major red flag. Financial products inherently carry risks, and guarantees can be misleading.
- Minimization of Risk: Downplaying the risks associated with investments, such as using terms like “low risk” without clear disclaimers, can lead to severe penalties.
- Overstating Performance: Claims like “outperforming the market” or “beating benchmarks” need to be supported by solid, verifiable data.
Higher Education
Marketing language in higher education must adhere to strict guidelines to ensure accuracy and transparency, especially regarding claims about outcomes and program quality. High-risk language includes:
- Employment Guarantees: Suggesting that graduates are guaranteed jobs or specific salaries can be highly problematic without substantial evidence.
- Accreditation Misrepresentation: Implying or stating that a program is accredited when it is not, or misrepresenting the scope of accreditation, can lead to significant compliance issues.
- Exaggerated Success Rates: Claims about graduation rates, job placement statistics, or student success must be accurate and up-to-date, with clear methodologies disclosed.
Healthcare
In healthcare, marketing language is heavily regulated to protect patients and ensure that claims about medical treatments, devices, or pharmaceuticals are accurate. High-risk language includes:
- Cure Claims: Using the word “cure” without appropriate government body approval (such as the FDA in the USA) can lead to severe penalties and consumer harm.
- Unsubstantiated Health Benefits: Claims about health benefits, especially those related to weight loss, anti-aging, or disease prevention, must be backed by rigorous scientific evidence.
- Omission of Side Effects: Failing to disclose potential side effects or risks associated with a treatment or medication is not only non-compliant but also dangerous.
Pharmaceutical
Pharmaceutical marketing is governed by strict regulations, particularly from the FDA in the USA, the MHRA in the UK and the TGA in Australia. These bodies ensure that consumers receive truthful and non-misleading information. High-risk language includes:
- Off-Label Promotion: Marketing a drug for uses not approved by the FDA is strictly prohibited and can result in significant fines and legal action.
- Overstating Efficacy: Claims about the effectiveness of a drug must be supported by robust clinical data and must not overpromise results.
- Minimizing Risks: Downplaying or omitting information about potential side effects, interactions, or contraindications is a serious compliance violation.
Insurance
Insurance marketing must be clear, transparent, and accurate, as consumers rely on this information to make critical decisions about coverage. High-risk language includes:
- Guaranteed Coverage: Promising guaranteed acceptance or coverage without clearly explaining the terms, conditions, and limitations can be misleading.
- Downplaying Exclusions: Omitting or minimizing the importance of exclusions, such as pre-existing condition clauses, can result in non-compliance.
- Inflating Benefits: Exaggerating the benefits of a policy, such as “comprehensive coverage” without clarifying what is actually covered, can lead to regulatory scrutiny.
As well as common industry specific claims to avoid, there are also universal high-risk words to evade.
Here are some examples:
Free
Example: “Receive a free mascara.”
The word “free” is enticing to potential customers, but you shouldn’t use it unless you’re sure your offer doesn’t ask for a customer’s money or time. Say your free mascara requires a customer to purchase another product to qualify or requires lengthy sales sessions or any other kind of stipulation. Your advertisement could be deemed misleading by your local self-regulatory organization.
This also goes for words that use “free” as a suffix, such as “risk-free.” You can’t guarantee that products such as investments won’t be risky.
Always/Never
Example: “Our team always acts with our client’s best interests in mind to ensure the highest returns possible.”
You can’t predict future performance, so you shouldn’t use these absolute terms to describe outcomes. If your organization takes a futures position that positively impacts 99% of your clients but negatively affects 1%. You’re no longer “always” acting in your clients’ best interests.
Highest/Lowest
Example: “Our school regularly produces the highest results in the state.”
These absolute terms set clear performance expectations—and if you fall short, you could end up in legal trouble. Your statement is no longer true as soon as this occurs. You can qualify your marketing by saying “*as of today’s date,” but it doesn’t quite have the same ring to it.
If you were to have the evidence to substantiate this claim, that evidence would need to be included clearly in your marketing copy. But it’s better to avoid using these two words altogether.
Low-Risk/Safe
Example: “Our clients enjoy the results of low-risk cosmetic procedures.”
All medical procedures come with some level of risk, so you shouldn’t mislead customers with these terms. There aren’t alternatives to “low-risk,” as it is generally true that you should not try to downplay the amount of risk involved.
Fastest
Example: “We offer the fastest return on investment in the market with short-term investments like short-term government bond funds and money market funds.”
Leave out the word “fastest” to avoid making a promise that your investments will produce returns before all of your competitors.
Guarantee
Example: “We guarantee that our medical teams deliver better patient outcomes.”
This word is a concrete promise to your potential customers that you may not be able to keep. You can never guarantee anything, so strike this word from your marketing vocabulary.
What’s the Best Way to Level Up Your Compliance Approval Process?
Three words sum up our advice “Catch things early.”
A preemptive approach is the best. While IntelligenceBank software can scan marketing assets at any point in the production lifecycle – from brief to live content – it is by far the wisest and most time economical decision to have protocols and software that is proactive rather than reactive.
This is where IntelligenceBank comes in. We use a mixture of ‘out of the box’ and custom-trained AI to ensure your marketing content is compliant with the rules of the governing bodies in the industries you operate within. Our software automatically identifies mistakes, omissions and high-risk language in marketing materials, so marketers can fix any issues before submitting the materials to legal for approval, mitigating rounds of feedback and review timelines. In addition to this, the platform’s workflow helps track creative briefs, markups, approvals and versions as well as auto populating disclaimers and scheduling live content reviews.
High-risk language in marketing can lead to significant legal, financial, and reputational consequences, especially in highly regulated industries. By prioritizing compliance in your marketing efforts, you not only protect your business from penalties but also build trust with your audience.
If you’d like to find out more about how to minimize high-risk language across all your marketing communications, contact us for a demo.
NOTE: This post isn’t a substitute for legal or regulatory advice; please seek legal counsel on compliance-related issues. Please refer to your legal and compliance experts for formal advice on high-risk language and alternatives relevant to your organization.
