The fine print disclosure is as iconic as the Yankees, Mom and Apple Pie. But pity the poor disclosure as it’s had a rough time of late. First, the FTC came out with its revised Dot.com disclosures (read about those here) In general they advocated clearer and more prominent disclaimers and also asked advertisers to think hard about whether the information should be in the body of the claim itself rather than in a disclosure.
Now the FTC has turned its attention to disclosures on television and print advertising. “Operation Full Disclosure” resulted in warning letters being sent to 20 of the largest 100 advertisers in the country (and 60 companies overall) alerting them to the fact that the FTC believes they failed to make adequate disclosures in their TV and print ads. The letters also asked them to notify the FTC about their response to the letter. (The FTC has indicated that the response has been “extremely positive.”)
In sending out the letters the FTC sought to reinforce its position that disclosures should be close to the relevant claim; that they should be in a font that is easy to read and in a color that stands out against the background. For TV advertising disclosures should be on the screen long enough to be read and understood and the ad itself should not distract from consumers noticing or reading the disclosure (i.e. no flashing strobe lights on the screen at the same time.)
All of us have probably been in conversations debating whether a particular claim needs to be clarified and the issue gets resolved by somebody saying, “Let’s just put it in a disclosure. As a result, sometimes disclosures get longer and smaller in an effort to fit everything in. The FTC’s letters also provide some helpful information on what type of claims need to be clarified. Some of what they say will hardly be surprising – for example, you need to adequately disclose whether a demonstration has been materially altered. But other examples might be more eye-opening to some. Some of the examples cited in the letters include:
- Claims that a product was unique or superior without adequately disclosing the breadth of the relevant product category;
- Comparative claims generally that failed to adequately disclose the breadth of the comparison;
- Failing to adequately disclose issues relating to the safety or legality of a product or service;
- Advertising a “risk-free” or “worry-free” trial period without adequately disclosing the need to pay for initial or return shipping;
- Advertising a product feature without adequately disclosing the need to buy an additional product accessory or service;
- Using disclosures that contradict an otherwise deceptive main claim (something which the FTC has said does not cure deception); and
- Failing to adequately disclose the conditions for obtaining an advertised price.
Do any of these sound familiar? Have you looked at your disclosures lately? If not, now may be a good time to do so. The FTC was careful to warn advertisers that they shouldn’t assume all is well just because they were lucky enough not to receive a letter. In the meantime, keep an eye out for what is happening with the disclosure. Perhaps when that American icon Derek Jeter puts his jersey away for the last time this fall there will be a few small fonts sneaking into the locker as well.