How to Implement Disclaimers and Disclosures Into Your Advertising
This blog post contains a transcript from a video presentation. This content is for informational purposes only and should not be considered legal advice. No attorney-client privilege is created.
In this post, we’ll be talking about implementing disclaimers and disclosures into your advertising. In previous posts I’ve talked about what disclaimers are, what kind of disclaimers you can make, and what kinds of disclosures that you can make. If you haven’t checked those out yet I suggest you do so before continuing with this article.
As I’ve mentioned in previous posts are videos the main purpose of disclosures and disclaimers is to avoid misleading consumers. That means that your disclaimers and your disclosures must be clear and conspicuous. Essentially, the FTC has unofficially come up with a four part test. This test has been used in court systems to determine whether advertising was fair or unfair to consumers. The four pillars of this test are prominence, presentation, placement, and proximity.
Prominence: Is the disclaimer or the disclosure big or loud enough for consumers to notice? That means that the text cant be so tiny that you need a magnifying glass to read itIf it’s a video ad in question – do you just speed up the video to get through that disclaimer or if it’s an audio ad, do you speed up the audio or make it so low that a reasonable person can’t hear it? If your ad fails that test, then it’s an unfair ad.
Presentation: Is the wording and format easy for consumers to understand and presented without distracting the consumer’s attention? Can somebody understand what the disclosure or the disclaimer is saying? Is it clear? Is it written in language that’s easy to understand? If you are advertising to 18 year old kids, you shouldn’t write the disclaimer in some sort of fancy, intellectual language that would only be understood by a PhD professor. You wouldn’t want a disclaimer to an English speaking audience to be in French. It’s not going to work. That doesn’t cover your butt and it’s quite illegal.
Placement/Proximity: I’m placing these two pillarstogether because they are very similar to each other. The questions to ask yourself here are – Is it in a place where consumers will look and/or conveyed in a way consumers will hear? Your disclaimer needs to be right next to that ad claim. It can’t be all the way down at the bottom of the page where the consumer already forgot about that ad claim. So if you make a statement in your advertising that requires a disclaimer or a disclosure, then you must make that disclaimer or disclosure next to that ad claim so that a consumer can make the connection in his or her head that the disclaimer and the ad claim go together. And that also means that you can’t just put a tiny link at the bottom of your page where they click it and it goes to all the disclaimers.
A common objection I get from clients is, “Well, my advertisement doesn’t flow if I have to keep making these disclaimers.” One way around this is to place a link to a separate page that has your disclaimer as long as the link is clear that it’s a disclaimer for the ad claim and the link is right next to the ad claim. By ad claim, I mean the statement in your advertising that gives rise to a need for a disclaimer or a disclosure.
Hyperlinks near the ad claim may be okay, but it can’t just say something like, “See below for details.” It needs to be clear. For example: if you make an ad claim about a beauty product some people with certain skin conditions can’t use your beauty product, your link can’t just say “disclosure”. Your link must say something like “People with certain skin conditions should not use this product. Click here to learn more.” That would be acceptable. Then you could have a separate page that really details the specific skin conditions.
It is also important to be aware that you must make a disclosure or disclaimer every time you make a triggering ad claim, not just the first time. For example: every time you say, “This is going to help you make money,” you need to put an earnings disclaimer or a results disclaimer talking about how results are not guaranteed. Or every time you use a testimonial, you need to use a testimonial disclaimer.
You have to understand the audience that you’re speaking to. Most copywriters understand this for persuasive selling, but its also important from a legal perspective. Disclaimers and dosclosures must be presented in a way that is going to resonate and be understood clearly by your ideal customer or by the person that, on average, would be reading your ad.
Sometimes you have a product that might be read by someone who’s in high school and also read by someone who is a PhD professor. Because both of those people can conceivably want to learn about whatever it is you’re selling. In that case, you go with the lowest common denominator. You will write your disclaimer in a way that will resonate with the least advanced person that might be reading your ad.
The FTC recommends that the best practice when writing an ad is to write it in a way that does not require clarification or disclosures. Of course that would be phenomenal, but there are plenty of features of your product that might be beneficial to 95% of consumers that would be reading your ad and you want to talk about those features because it’s good for them. You still have to take care of that 5% of people who your product might not be for. For example, again, the beauty product, 5% of the people might have a skin condition that won’t work with your beauty product. You need to address that issue and you need to understand that if there is a reasonable chance that a person or a group of people might not receive the benefit of the product that you are reporting, then you need to make it known to them.
In most cases the FTC’s ideal version of advertising just isn’t realistic because it would lead to a lot of ineffective advertising. But you should keep that in mind when you’re writing your advertisements. You should keep in mind what the ideal version would be and to try to push your ad in that direction as much as you possibly can.
There are two things that disclaimers can absolutely never be used for. One, they cannot be used to remedy a literally false claim. If I’m selling you a blue pen but I think that more people would buy a red pen, I can’t just say this pen is red and then put in a disclaimer that the pen is actually blue. You can’t lie or say something that’s false and then use a disclaimer to try to qualify that. If you make a false claim, there’s nothing a disclaimer or disclosure can do to ever make that claim not false.
The Second thing that you can never use a disclosure to do is use it to add a vital qualification. You might be asking, “Well, what is a vital qualification?” Here’s an example – A company that was selling a nicotine patch for people who were trying to quit smoking. The statement that they made in their advertisement was that it was the only nicotine patch out there that could be worn for 24 hours straight. People were excited about that because all the other patches could only be worn for a few hours. However, this wasn’t really true because there were other 24-hour patches but they were only available through a prescription from your doctor. So the qualification that they needed to make in the ad was that it was the only non-prescription patch. Not the only patch in general. While the company did have a disclaimer qualifying this claim, the FTC ruled that this statement needed to be made directly in the ad, not through a disclaimer. The lesson here – If there’s a vital fact about your product, then you can’t use a disclosure to get around it. You need to either state that vital fact directly in your advertisement or you need to not make that statement at all.
In conclusion, this is how you’re going to implement disclosures and disclaimers in your advertising. Just be conscious.Bbe aware of what you’re saying and be aware of what the rules are and you’re going to be fine. At first, there might be a learning curve in terms of implementing all this stuff into your advertising, but you get over that pretty quickly. You find ways to make advertising cool, and fun, and engaging, and effective, and still be legal and compliant. The rules aren’t set up in a way to make it impossible for you to make great, effective advertising. They’re set up to protect consumers. As long as you keep consumer protection in mind and fair advertising and fairness in general, then your advertising is going to be okay.
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