Legal Update: Legality of Ads

Surrogates, Employment, Cigarettes, Roofing, Sweepstakes 

We have received several hotline calls and e-mails regarding the legality of a variety of advertisements, some of which are grouped together into the following topics:

Surrogate Mother & Sperm Donor Ads

A few members have reported receiving ad copy that solicits females to become surrogate mothers and males to become sperm donors. Here are a couple of examples:

SURROGATE MOMS NEEDED! $18,000 Compensation. Healthy, non-smoking females, 21-37 yrs., height/weight proportionate. Gave birth with no complications. No criminal background, with private health insurance.

EARN $5-10K & HELP COUPLE REALIZE DREAM! Attractive, professional hetero couple (financially & mentally stable) need SPERM DONOR. No parental duties ever result, privacy assured 4ever. If U R healthy, attractive student under 35, Caucasian, 5'10" - 6'2", w/no STDs, please send name, age & photo to _______"

Are these ads legal? The answer is that, yes, Florida law recognizes contracts for surrogates and sperm donors. However, there are two main limitations.

First, all parties participating in these contracts must be at least 18 years of age. Therefore, it would be advisable to limit the ad to adult surrogates and donors.

Second, there are compensation limits. With respect to surrogate contracts, the commissioning couple may agree to pay "only reasonable living, legal, medical, psychological, and psychiatric expenses of the gestational surrogate that are directly related to prenatal, intrapartal, and postpartal periods." With respect to sperm donors, only "reasonable compensation directly related to the donation of ... sperm" is permitted.

There appear to be no cases that define what "reasonable" means as used in these laws. It is not clear if $18,000 is a reasonable amount for living, legal, medical, etc., expenses in the first ad. Regarding the second ad, it seems that given the relatively short duration of the donation process, "$5-10K" might be considered excessive. Given the statutory language, the more prudent approach would be to change the language relating to a specific amount so that it is more in line with the statutory compensation provision. For example, the first ad might be changed to say the surrogate will be "compensated for her reasonable living, medical, legal, etc., expenses up to $18,000."

Employment Ads Requiring Upfront Fee

Individuals or entities are placing classifieds asking for an upfront fee, usually $75 or so. Apparently complaints have arisen that these ads may be scams that set up a store front long enough to collect "small fees" from multiple applicants, and then disappear before anybody can catch up with them. Here are examples:

CLERICAL - WILL TRAIN. Medical, dental assistant. FT. No nights, weekends. $13-$18/hr. Small fee required. [phone number]

WAREHOUSE: ALL DEPTS. Must be able to lift 20 lbs. Immediate hire. Full benefits. Full-time. $12-$22/hr. (DOE). Overtime pay. [phone number] Small fee required.

WAREHOUSE NOW HIRING! All Departments. Assembly/Shipping/Receiving & Forklift. Immediate hire. Management/Office help available. No experience, will train. 1st & 2nd Shifts. Benefits. $13-$22/hr. Fee required. [phone number]

What is the newspaper's legal and ethical obligation to their readers and advertisers regarding these ads?

The newspaper will not be liable for running these ads unless it has knowledge that they are fraudulent or illegal, and knows this would lead to damages suffered by anyone that may be injured as a result. The newspaper is not expected to research each ad in detail to determine if they are legitimate. It is a challenge to determine whether those placing the ads are really "simply taking other people's money and running," as some have suggested without supporting evidence. Maybe there actually is some legitimate service being performed for the "small fee." Ultimately, it will be the customer who will have to decide if the small fee is worth it. On the other hand, if the newspaper actually knows that these particular advertisers are pocketing the small fee and then disappearing, it would be advisable to cease running the ads.

As far as the paper's ethical obligations are concerned, that is a looser standard and will be primarily based on customer relations and the revenue potential and whether it is worth it to run the ads. The paper should be leery about running the ads if it does not feel they are legitimate, perhaps based on customer feedback or complaints. Perhaps there is some "legitimacy test" required that would entail a call to the number to help the paper determine who is placing the ads and in deciding if it is ethical to run them. Again, the paper is not obligated to be the "ad police" although a "gut check" may be OK if there is a way to do this.

Ads for Bulk Sales of Cigarettes By Mail

Does the following ad soliciting customers for bulk sales of cigarettes require any disclaimers?

Cigarette Carton Prices as low as: Marlboro $15.90, Camel $14.90, More Varieties Available! Only $5.50 per carton shipped to your door! Minimum Order 3 Cartons! No Additional Charges!

The answer depends on who is purchasing the advertisements. If it is a manufacturer or importer of cigarettes, they must make the labeling disclosure required by federal law. The company identified in the ad looks like it may be an importer. If so, the ad would need to include one of these declaimers:

SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.

SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide.

If the advertiser is an importer, the paper needs to make sure the ad follows all applicable rules about the size of the warning label, etc.

Before running the ad, the paper needs to find out whether the advertiser is an importer.

Roofing Contractor Ads

The newspaper received a complaint from a roofing contractor concerning advertisements of general contractors in the roofing/roof cleaning section. The concerned roofer and reader claimed that the roofing ads were illegal for a number of reasons such as: 1) the ads should specify the license numbers and full names of the roofing contractor; 2) general contractors should not be listed under the roofing section; 3) the newspaper is responsible for policing the ads to ensure DBPR rule compliance.

Is the complaining party correct? The answer is that to some extent, the complaints are legitimate. Here are some observations regarding each:

1. License Numbers and Names - Section 489.119(6)(b) of the Florida statutes covers roofing contractors. It states that, "The registration or certification number of each contractor or certificate of authority number for each business organization shall appear in each offer of services, business proposal, bid, contract, or advertisement, regardless of medium, as defined by board rule, used by that contractor or business organization in the practice of contracting."

This provision requires the roofing contractor to include in the advertisement his or her "registration or certificate number" (or if a business organization, its "certificate of authority number") used by the contractor or business organization in the practice of contracting. The law does not specifically state that the advertisement must include the full registered name without abbreviations, as claimed by the complaining roofer, but this seems to be a logical requirement and it would be advisable to require that information.

2. General Contractors - Regarding the second issue, section 489.113(3)(g) of the Florida Statutes states, "No general, building, or residential contractor certified after 1973 shall act as, hold himself or herself out to be, or advertise himself or herself to be a roofing contractor unless he or she is certified or registered as a roofing contractor." Accordingly, the newspaper should not list the contractor under the roofing section unless he or she is a registered roofing contractor.

3. Newspaper Duties - Newspapers are not liable for advertisements for construction or other regulated occupations that fail to list occupational license numbers. However, it is good business practice for the newspaper to know about the law in this area and pass that information on to advertisers. Although the newspaper cannot and is not required to be the "ad police," its customers will appreciate the knowledge of the newspaper staff in this area.

Telephone Calling Card Sweepstakes

An advertiser is conducting telephone calling card sweepstakes and has submitted ad copy to the ad department that states:

1. This ticket entitles bearer to 250 additional Free Sweepstakes Entries with any phone card purchase of $20 or more. Bring a First Time Friend or Spouse. Big Winner Payouts! **Sweepstake points have no monetary value and can only be used to play ("validate") the sweepstakes game on a validation terminal. Sweepstakes entries are used in conjunction with our sales promotions.

2. Win Sweepstakes. We Sell Phone Cards - 250 Additional Free Sweepstakes Entries with any phone card purchase of $20 or more. **Sweepstake points have no monetary value and can only be used to play ("validate") the sweepstakes game on a validation terminal. Sweepstakes entries are used in conjunction with our sales promotions.

Should the newspaper run these ads without checking them out further?

Without examining in detail the rules and regulations of the sweepstakes, it is difficult to conclude whether this is a lawful contest under Florida law. Susan Tillotson Bunch, an attorney with the Thomas, LoCicero & Bralow firm in Tampa specializing in this area, indicates that there could be an alternate method of entry with "equal dignity" (which is not apparent from the ad copy above), in which case the sweepstakes might be acceptable. However, based on the ad copy language alone, the sweepstakes could be interpreted as violating the laws against lotteries. In addition, depending on the machines being used and the prize made available, the game also may involve the use of illegal "gambling devices" and possibly a "gambling house."

This observation is based on two Florida Attorney General opinions addressing these types of promotions under Florida law - AGO 2007-48 and AGO 98-07. The opinions involve companies that operated machines that dispensed long distance phone cards which also awarded sweepstakes points for each dollar spent on the phone cards. The sweepstakes points could then be instantly redeemed for cash (in the earlier case) or (in the latter case) redeemed to play sweepstakes games online with winners awarded cash. These opinions found these types of activities constitute illegal lotteries and illegal gambling devices.

Based on these opinions, it is recommended that the newspaper obtain further information on the promotion before approving the ad copy.

- Sam Morley

Samuel J. Morley is General Counsel for the Florida Press Association. He directs legislative and lobbying efforts on behalf of the association and oversees the Legal Hotline, a free service provided to FPA and CPF member newspapers. He is the immediate past chair of the Florida Bar's Media and Communications Law Committee. Sam routinely provides advice about the sunshine law and open records acts, libel, employment issues, legal advertising, taxation, and other laws affecting newspapers. Please do not hesitate to call the hotline at 877.NEWSLAW or e-mail Sam at smorley@flpress.com with your questions or concerns. We are a service for all members and look forward to helping you with your legal concerns!

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