FTC's evolving description of "clearly and conspicuously"

Posted by Clyde Hutchins | Apr 29, 2018 | 0 Comments

Clear and Conspicuous Disclosure

I have addressed what constitutes clear and conspicuous disclosure on this site before. It is an important concept for advertisers and marketers to understand. The FTC recently entered an order against a company with regard to misleading claims about the anti-aging and other health benefits of the company's products. Interestingly, the final order describes the FTC's view regarding what constitutes clearly and conspicuously.

This is an important phrase to understand because it goes to the heart of what the FTC considers to be legally adequate disclosures about products and other offers to consumers.

According to the April 2018 order: “Clearly and conspicuously” means that a required disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers. The FTC goes on to list more details about what constitutes clearly and conspicuously:

1. In any communication that is solely visual or solely audible, the disclosure must be made through the same means through which the communication is presented. In any communication made through both visual and audible means, such as a television advertisement, the disclosure must be presented simultaneously in both the visual and audible portions of the communication even if the representation requiring the disclosure (“triggering representation”) is made through only one means.
2. A visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, must stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood.
3. An audible disclosure, including by telephone or streaming video, must be delivered in a volume, speed, and cadence sufficient for ordinary consumers to easily hear and understand it.
4. In any communication using an interactive electronic medium, such as the Internet or software, the disclosure must be unavoidable.
5. On a product label, the disclosure must be presented on the same display panel as the representation that requires the disclosure appears.
6. The disclosure must use diction and syntax understandable to ordinary consumers and must appear in each language in which the triggering representation appears.
7. The disclosure must comply with these requirements in each medium through which it is received, including all electronic devices and face-to-face communications.
8. The disclosure must not be contradicted or mitigated by, or inconsistent with, anything else in the communication.
9. When the representation or sales practice targets a specific audience, such as children, the elderly, or the terminally ill, “ordinary consumers” includes reasonable members of that group.

These concepts have been bounced around before by the FTC. It is interesting to see it re-articulated as the FTC continues to engage in enforcement actions against companies marketing and advertising to consumers online.

If you have questions or need assistance with understanding and complying with the requirements of the FTC (or State Attorney General Offices that enforce the unfair or deceptive acts or practices standards), please feel free to contact Harmony Law. Harmony Law can be reached through its website or by telephone at (970) 488-1857.

About the Author

Clyde Hutchins

Clyde Hutchins is the founder of Harmony Law. Mr. Hutchins started his legal career in Cheyenne, Wyoming as a law clerk for the district court judges. Mr. Hutchins then entered private practice with a Wyoming based litigation and business law firm. Later, Mr. Hutchins went to Alaska, where he was the chief litigator for a firm that engaged in bond law, corporate law, securities law, and municipal law. The State of Wyoming hired Mr. Hutchins from Alaska to represent the State of Wyoming in the national tobacco arbitration and act as its tobacco settlement attorney. While in that position, as a hobby, he developed an enforcement unit for consumer protection for Wyoming residents. Mr. Hutchins moved to Colorado in 2016 and founded Harmony Law, LLC. Harmony Law is primarily engaged in civil litigation. It is also a general practice firm in the areas of business law, estate planning, consumer law and family law. Harmony Law is active in all state and federal courts throughout Wyoming and Colorado.


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