RECREATIONAL ADVERTISING: YOUR IMAGES AND WORDS SHOULD ACCURATELY REFLECT THE EXCURSION

Federal and state consumer-protection laws are now frequently invoked in recreation-oriented litigation via claims for false or misleading advertising.  Plaintiffs’ attorneys do this primarily because many of these statutes are punitive and provide for as much as double or even triple damages against “violators.” Additionally, your advertising can be considered an “express representation” (or in more formal legal terms, a “warranty”) of what your recreational product is going to be like for the client/participant.

If the words and visuals in your marketing differ significantly from the experience that the client participant ultimately receives on your excursion, or from the advisements and warnings in your release and waiver document, then courts may refuse to uphold your release and waiver.  Courts will find that these two expressions (your advertising and your release contract) are at odds with each other or that they compete with one another, and therefore, a jury should be allowed to decide the facts.

We recognize that advertising is a critical component of running a successful recreational-activity business.  With advertising come risks, however, so you must present it carefully, to avoid the risk that your release and waiver contract will be negated and also to limit your susceptibility to separate claims for false advertising, misrepresentation, and even fraud in any lawsuit brought against you.

If you have questions about your advertising or about your liability release, contact one of Grund Dagner’s experienced Colorado outdoor and indoor sports and recreation-activity lawyers, or Alaska-based attorney Tracey L. Knutson, with whom the firm regularly consults and whose primary practice is representing recreation- and adventure-sports commercial operators, public-land administrators and recreation-oriented educational groups.