Here is a reprint from a recent article by: Amy Mudge and Randal Shasheen from their blog at www.allaboutadvertisinglaw.com by the law firm Venable, LLP. I thought it was interesting to share this with you.
Aloha. One of us was recently in Hawaii and taking a break from the blog, but it is hard even in paradise to avoid running into things we should discuss. Like the disclaimer below placed prominently on the luxury resort safe:
This got us thinking about disclosures. The basic rule, of course, is that one cannot make a promise and then by use of a super explain that you did not really mean it. Appropriate use of a disclosure is to clarify or provide additional information about the claim to put it into proper context. Well, the room safe did not make an express promise that it was appropriate for storing valuables. But is there an implied claim just by virtue of it, well, being a safe? A claim can be conveyed by a trade name — can it also be conveyed by a generic name or essence of a product? Perhaps we are bumping up here to the intersection of product liability/implied warranty and advertising law. And perhaps the former would be more forgiving of the statement that “this room safe is not for the safekeeping of valuables” (with emphasis on the “not” so as to avoid any doubt).
But in our world of advertising we will use this opportunity to remind our readers of the basics of appropriate use of disclaimers. They need to be clear and conspicuous. Two simple words fraught with so much ambiguity. One key tenet is a disclaimer needs to be in close proximity to the claim it is modifying. If the claim is on the front of the label, the disclaimer should not be on the bottom rear. Recent FTC consent orders are requiring that the disclaimer be in the same form as the main claim (e.g. If a tv claim is made by voiceover the disclaimer cannot only appear in print on the screen). This has always been the rule for child-directed advertising under CARU’s guidelines. Some recent NAD actions have highlighted that the network standards for use of supers may not satisfy the NAD. They have discouraged use of supers at all, preferring to see disclosures as part of the main body of the ad or if supers are used, they should appear with a contrasting background so that the disclaimer is more readily noticed and read by viewers.
Of course, the best thing for a marketer to do, if possible, is to make the limits of the promise clear to consumers as part of the claim itself. An example being that it is better to say “Taco Tuesday – Half Price Tacos Every Week!” Rather than “Free Tacos Weekly* *Only on Tuesday, see stores for additional details”. Perhaps the room safe accomplished this as it actually did not work — it simply would not lock, so perhaps it was telling consumers that it was not, in fact, safe to store valuables. For the more ambiguous situations, we try to boil it down like this: if you have to hunt for it or squint are consumers likely to get the message? And if there is really key information to impart are you likely to earn their trust with mouse type? And stay tuned as the FTC very soon will be giving updated guidance on how they expect to see disclosures used online — key information for all who struggle with presenting key information in the 2″x2″ screen world where we unfortunately spend far more of our time than on a Hawaiian beach.