Best of the legal hotline: What’s considered an advertisement?

As a Realtor®, you know a broker’s name and telephone number must be included in an advertisement. But what about a how-to book?

Facts: Betty is an associate broker who has written a “how-to” book informing prospective homebuyers of the ins and outs of buying a home. She is paying for its publication, but hoping that some book sellers might offer her publication at resale. It is more likely that Betty will give away copies to the more serious prospects who attend her free home-buying seminars.

Betty has completed the book but is helping to design its jacket, including the rear inside portion that tells “about the author.” Betty intends to describe her background and will emphasize that she is currently active as an associate broker, but she does not want to identify her broker because she is uncertain how long she will maintain the affiliation with her current broker.

Q. Because Betty hopes this book will bring business, does she have to include the name and phone number of her broker as she would in an advertisement?

A. No. (For those of you who may not read this article to its end, I place my qualification here: while I am comfortable with my answer and think it is the correct one, I am neither a prosecutor with the Department of State, a hearing examiner or a member of the Real Estate Commission who, respectively, prosecute, hear cases, and decide whether acts constitute violations of Pennsylvania law.)

Yes, a broker’s name and telephone number must be included (in equal or great prominence than the name and number of the salesperson or associate broker) in advertisements. The issue, then, is whether the book is an advertisement.

We’ve all seen “infomercials” that project as educational bits. We’ve all seen large newspaper advertisements that appear as news articles, but bear at the top of a page in very small print a tell-tale “advertisement” or “advertisements supplement.” Betty’s book, however, does not fall into the category of an infomercial or news-alike advertising supplement. The reason? Betty’s book, unlike the infomercial, does not directly ask that consumers buy her services. Certainly it is implied and certainly Betty is hopeful that anyone reading the book will be impressed enough with its author to seek her out when buying a home.

Realtors®, lawyers, retailers and others market themselves in ways that would not be considered advertising. The Kiwanis Club member’s directory lists Joe’s profession as a licensed real estate salesperson. Is that an advertisement? Does it matter that Joe joined the Kiwanis Club to promote his real estate business as much as for any other reason?

Betty’s book is informative and essentially its primary purpose is to educate homebuyers. That she is described as a real estate licensee may indeed work to promote her business, but is not, in this author’s opinion, an advertisement requiring the name and telephone number of her broker. That is not to say that a similar publication will not qualify as an advertisement. It all depends on the content and whether there is a direct solicitation.

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