More and more we are seeing disclaimers at the foot of websites, on social media pages, in direct mailers, in 15-second TV ads, in videos, and on products. The savvy marketer understands the importance of affixing disclaimers to their advertising material. Yet, while they may understand the need for disclaimers, they do not often properly draft them or place them, nor do they truly appreciate the “clear and conspicuous” requirement.
Both federal and state law govern advertising of products and/or services. In particular, the Federal Trade Commission(FTC) has adopted an reasonable definition for a “clear and conspicuous” disclaimer:
“When written, clear and conspicuous information generally is printed in a type size that a consumer can readily see and understand; that has the same emphasis and degree of contrast with the background as the sales offer; and that is not buried on the back or bottom, or in unrelated information that a person wouldn’t think important enough to read. . . . When disclosures are oral, clear and conspicuous means at an understandable speed and pace and in the same tone and volume as the sales offer.”
The National Advertising Division of The Council of Better Business Bureaus (“NAD”) has adopted a similar approach in determining whether a disclaimer is sufficiently “clear and conspicuous”:
“Factors to be considered in assessing whether material product information is clearly and conspicuously disclosed include: the prominence of the information that needs to be disclosed, its proximity to the underlying claim that it is intended to qualify and (particularly in the case of Internet advertising) the likelihood that consumers will have notice of the existence of this information before making a purchase.”
In order for a disclaimer to really be effective, it must be easily understood. One way to accomplish that is by using language appropriate to your target market. For example, if your target market consists of children, then your disclaimer should include more disclosures and appropriate disclaimers than if you were advertising to adults.
What about you, do you have disclaimers?
If so, have they been properly drafted in language that could pass the “clear and conspicuous” test? Have they been properly placed? If not, fix it, before it is too late.