A very good article on legal copy and the use of Spanish. Please note that I think the 35 million is a typo and should read 45 million. Also the NOVA story is an urban legend. Please see the full story at:
Lost In Translation: Legal Issues Raised When a Company Markets to the Hispanic Consumer
April 9, 2007
By Martin Arias
In the United States, product advertising in Spanish has increased significantly in recent years. Companies and advertising agencies spent over $2 billion for the first six months of 2006 in advertising directed at the Spanish-speaking domestic population, representing a 20 percent increase over the same period last year. This development is not surprising given that the Hispanic population in the United States has grown to 35 million, with a purchasing power in the hundreds of billions of dollars. Significantly, a company's decision to target this market by advertising in Spanish -- while it may appear simple at first blush -- can raise a host of legal issues.
First, there are specific regulations governing advertising in Spanish of which a company may not even be aware. In the typical scenario, a company or its lawyers will review an advertisement and related materials to ensure they (a) are not "unfair or deceptive" in violation of the Federal Trade Commission Act, and (b) comply with legal requirements imposed by state consumer protection laws, intellectual property laws and general contract law.
If a product or service is advertised in Spanish, however, the Federal Trade Commission (FTC) requires that all disclosures related to such product or service be in Spanish, too. Specifically, the federal code provides:
"Where cease-and-desist orders as well as rules, guides and other statements require "clear and conspicuous" disclosure of certain information in an advertisement or sales material in a newspaper, magazine, periodical, or other publication that is not in English, the disclosure shall appear in the predominant language of the publication in which the advertisement or sales material appears. In the case of any other advertisement or sales material, the disclosure shall appear in the language of the target audience (ordinarily the language principally used in the advertisement or sales material)."
A failure to follow this regulation may lead to prosecution, fines and penalties.
Moreover, the FTC consistently has ruled that it is "unfair and deceptive" to Spanish- speaking consumers, and a violation of Section 5 of the Federal Trade Commission Act, when a company partially discloses the contractual terms and conditions for a service in Spanish to customers who understand only Spanish, without a full translation of all the terms and conditions into Spanish. In J. Kurtz & and Sons, the FTC issued a consent order requiring a Brooklyn furniture and appliance retailer to cease advertising falsely and misleadingly by failing to provide customers with contracts, booklets, credit cost disclosures and other mandated written disclosures printed in English and Spanish when the sales presentation was made substantially in Spanish. Specifically, the FTC stated:
"the practice by respondents of providing customers, who understand only Spanish, with a partial disclosure in Spanish of the terms and conditions of the contract, without translating all the terms and conditions of the contract into Spanish, is deceptive, misleading and confusing to Spanish speaking customers and constitutes an unfair and deceptive act and practice in or affecting commerce in violation of Section 5 of the Federal Trade Commission Act, as amended."
Second, some states require a company advertising in Spanish to provide material relevant to the product or service in Spanish as well.
For example, in Maryland it is considered an "unfair or deceptive trade practice" for a seller to fail to furnish the buyer with a fully completed receipt or copy of any contract which pertains to a door-to-door sale at the time of its execution, which is in the same language as that principally used in the oral sales presentation.
Similarly, in connection with any door-to-door sale in Idaho, it is an "unfair and deceptive act or practice" for a seller to fail to furnish the consumer with a fully completed receipt or copy of any contract pertaining to such sale at the time of its execution, which is in the same language, e.g., Spanish, as that principally used in the oral sales presentation. In Connecticut, telephone service companies must provide service termination notices in English and in Spanish if such company has a "substantial" number of non-English speaking Spanish surnamed customers.
And, in California, telephone service providers that sell their services in any of the following languages -- Spanish, Cantonese, Vietnamese, Mandarin, Korean, or Japanese -- are required to comply with numerous requirements, including the identification and storage in a database of the language preference specified by their customers, and the provision of a service confirmation letter to the customer in the preferred language.
Third, the decision to advertise in Spanish, if not executed properly, can raise potential products liability issues. Some courts have found that a failure to warn of a potential product danger in Spanish, especially if the target customer is Spanish-speaking, could be a factor in determining a manufacturer's liability on a products liability theory.
In Stanley Industries, Inc v. W.M. Barr & Co., Inc., for example, the court denied the summary judgment motion filed by a manufacturer of a flammable product, and held that there were issues of material fact with respect to the adequacy of the warning label in English when the product had been advertised in the Miami Hispanic media, a market with a large Spanish-speaking population. Based on the facts before it, the court concluded: "it is for the jury to decide whether a warning, to be adequate, must contain language other than English."
Similarly, in Marcos Arbaiza v. Delta International Machinery Corp, the court denied the defendant's motion for summary judgment on a products liability claim and held that the adequacy of a warning label printed in English for a table saw used by a Spanish-speaking operator was a question for the jury. As these cases demonstrate, some potential products liability issues may be avoided if warnings or disclaimers are translated into Spanish, especially when a company targets Hispanic customers through the use of Spanish media.
Fourth, in a typical marketing situation, a company may hire an attorney to review a proposed advertisement and related materials to ensure that they comply with relevant legal requirements. When the company wishes to target the Hispanic market by advertising in Spanish, it should seriously consider whether the attorney conducting such review is fully literate in Spanish. If the attorney reviewing the advertisement and related materials does not speak and read the language, she will not be able to catch and correct potential legal issues. Moreover, the Model Rules of Professional Conduct require an attorney to competently represent a client. An attorney reviewing or providing legal advice regarding material written in a foreign language, the nuances of which she does not fully comprehend, may not be providing competent legal representation.
Finally, cultural sensitivity when naming products or services can go a long way. A few companies in the past have named products that, when translated to Spanish, have had rather comic results. The infamous Chevy Nova is the prime example. "No va" in Spanish means "it doesn't go" or "it doesn't work." Colgate toothpaste, in South American slang sounds very similar to the expression "hang yourself." The Misubishi "Pajero," in Argentine slang, is suggestive of a lewd act.
In sum, if a company is specifically targeting the Hispanic market in Spanish for sales of its products and services, it, or its lawyers, should make sure that the company is compliant with all laws and regulations governing such a marketing and advertising strategy. And, out of an abundance of caution, the company should consider translating all material documents into Spanish. In addition, the company should consider hiring an attorney who is qualified both in terms of language and legal skills to ensure that the proposed Spanish advertising and marketing materials comply with all relevant state and federal laws, and that such materials do not risk offending the target customer from a cultural perspective.
Martin Arias is an advertising and marketing attorney and served as in-house advertising counsel for a Fortune 100 company for several years. He received his J.D. from Boston University and now runs his own law firm. He can be reached at 215-749-0888 or firstname.lastname@example.org
Source: HispanicBusiness.com (c) 2007. All rights reserved.