So What Is “Clear And Conspicuous” Under The Federal Trade Commission Regulations And Guidelines?

Nearly every article I have read recently and every compliance memorandum you receive from an attorney states “this disclaimer must be clear and conspicuous”. So what does that mean? In the broadest sense it means whatever the agency investigating you decides it means at the time they are investigating you.

In a more practical sense it means that the average consumer will see, read and understand the disclaimer. So how do you ensure that the disclaimer will be seen, read and understood by the consumer? You don’t hide it in a footer. You don’t put an asterisk next to what your trying to disclaimer and then put a small faded footnote on the page. You don’t make the font size and color so small or so light that it is missed. You don’t put a creative opposite the disclaimer to distract from it.

The Federal Trade Commission has identified certain factors that must be reviewed to determine whether a particular disclosure is clear and conspicuous. These factors include, (1) the placement of the disclosure in an advertisement and its proximity to the claim it is qualifying; (2) whether creative content of the advertisement distracts the consumers attention away from the disclosure; (3) whether the advertisement is so lengthy that the disclosure or disclaimer needs to be repeated; (4) whether disclosures or disclaimers in audio messages are presented with adequate volume and clarity and visual disclosures appear for a sufficient duration; (5) whether the language of the disclosure or disclaimer is understandable to the intended audience. Advertisers must consider all of the factors and evaluate an actual disclosure in the context of the Ad as a whole.

In short, you place the disclaimer in the body of the creative at or near whatever statement you are trying to disclaim. You use the same or similar font size and color for the disclaimer as the representation you are attempting to disclaimer. You place the disclaimers above the fold line and more often than not on the left side of the page. You make sure the audio length and volume do not change during the disclaimer or disclosure language. You may use a link or click through if the disclaimer is long or complicated so long as the link is clearly distinguished as a link in the content.

Remember disclosures are required to prevent deception and therefore must provide consumers with material information about the product or service you offer before they take a final decision about their purchase. Whether or not the advertisement meets this standard must be examined by the ads over all appearance and performance in which the reasonable consumer will actually able to perceive and understand the disclosure based on the context of the entire advertisement. The overall impression must therefore be considered in terming whether the disclaimer is properly placed, in the proper font size and color to be effective and compliant.

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