Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 15 14 / Venable It’s hard not to notice disclaimers, as they appear virtually everywhere. But it’s also hard to commit to the disclaimer as you struggle to read the fine print or wonder what jargon just briefly flashed across the television screen. While it may seem that some marketers adhere to the adage that “a disclaimer a day keeps enforcement away,” disclaimers are not always the answer to curing what might otherwise be a false or misleading advertising claim. The FTC’s regular enforcement of disclosure rules for national advertising should serve as a warning to advertisers to clean up the fine print. Regulators encourage advertisers to write clearer ad copy rather than rely on disclaimers, and if you do use a disclaimer, make sure it is clear and conspicuous and appears in close proximity to what it is disclaiming, and consider whether it should appear in the same form (verbal or written) as the advertising claim. Attention should also be given to the content of the disclosure to ensure that the disclosure does not contradict or significantly limit the advertising claim. In other words, the disclosure should explain, not change, the advertising claim. Advertising Disclaimers Leonard L. Gordon lgordon@Venable.com +1 212.370.6252 Here are a few simple questions that can be used to determine whether a disclaimer is appropriate: • Would a simple change to the ad copy obviate the need for a disclaimer? Would the ad copy be false or misleading without the disclaimer? • Does the disclaimer “contradict” or go against the plain meaning of the ad copy? If so, it may not be effective. • Does the disclaimer provide additional useful information or clarify ambiguities in the ad copy? If so, it is likely a good use of a disclaimer. • Does the disclaimer blend into the background of the advertisement, or does it appear with distracting activity or images? If the latter is true, then you may want to rethink whether to use a disclaimer at all.