2020Directory_FNL_FlippingBook

Deception by Omission An advertisement can be deceptive not just for what it says, but also for what it does not say, that is, if it omits material information that is necessary to dispel a misimpression that the advertiser created. This usually arises in situations where there are significant qualifications, limitations, conditions, or restrictions on an offer. For example, it is deceptive to advertise financing at a particular rate without disclosing (when such is the case) that the rate may adjust upwards. Note that a disclosure is appropriate to qualify a claim, not contradict it. It is deceptive to claim one thing in the headline or text, while saying the opposite in a fine-print footnote. Moreover, a deceptive advertisement cannot be “cured”by providing the truth in a later communication with the consumer. Making Effective Disclosures All advertised terms must be“clear and conspicuous.”If a disclosure is not made clearly and conspicuously, it is the equivalent of not making the disclosure at all. The FTC has identified the four P’s for making effective disclosures: Prominence, Proximity, Placement, and Presentation. Prominence – A disclosure must be large enough and sufficiently contrasting with the background such that ordinary consumers will notice and read it. The FTC does not state a required or minimum type size for disclosures, but there are state laws that require a minimum of 8- or 10-point type. Depending on the layout of the advertisement and the importance of the information, however, type size larger than 8- or 10-point may be necessary or appropriate. Disclosures should be distinguished from the background of the ad by using a contrasting color, bolding it, and/or putting the disclosure within a border. Asterisks next to qualified terms should be at least 50% the size of the qualified term’s print size. Proximity – Disclosures should be located close to the terms being qualified. A small footnote at the bottom of the page or image is generally not sufficient. Nor is putting the disclosures on another page of a brochure or another screen or page of a website not close to the qualified term or referring consumers to another location entirely to see the material terms (such as “see dealer for details”). In digital advertising, if hyperlinks are used to direct the consumer to the disclosure, they must be prominently displayed and clearly labeled to convey the importance and nature of the information. Information essential for consumers to understand the offer should not be disclosed through a hyperlink. Placement – The location of the disclosure within the advertisement must be such that ordinary consumers would notice it. Small print asterisks or footnotes, even those next to the qualified term, do not meet this standard. Referring consumers to another document or location, such as “see dealer for details,”is generally unacceptable. Presentation – Language should be in “plain English.” It should not scroll across media or be of such detail and depth that the average consumer would not likely read or understand it. There should be no distracting elements in the ad that compete for attention with the disclosure. The disclosure should be presented unambiguously and in short phrases. Oral disclosures in radio or audio media must be in a volume and cadence that a reasonable consumer can hear and understand. Disclosures made in online or social media advertising present some unique challenges. This topic is discussed below.

2020 MEMBERSHIP DIRECTORY & SERVICES GUIDE HOT TOPICS

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