Use of Disclosures

A. Introduction
In advertising, disclosures remain an indispensable tool used by
advertisers to augment, explain, and clarify the information contained in
the advertisement. Disclosures, ranging from short phrases such as
“some restrictions apply” to long descriptions of the potential side effects
of a prescription medication, for example, traditionally appear in small
print at the bottom of a print advertisement, superimposed onscreen
during a television or internet advertisement, in a voiceover at the end of
a radio or television commercial, or some combination of these.
Advertisers making use of disclosures should bear in mind two
cardinal rules:
First, to be effective, a disclosure must be clear and
conspicuous and in close proximity to the claim it modifies.
Second, it is never proper for an advertisement to use a
disclosure to contradict an advertisement’s message or to
clear up false impressions that an ad might otherwise leave
Failure to disclose material information, appropriately and
accurately, can lead to claims of false advertising, whether from a
competitor, a regulatory or governmental body, or an aggrieved
consumer in a class action suit. Examples abound of advertisements that
were found to be false or misleading because of inadequate disclosures.
Federal courts, the Federal Trade Commission (FTC), and self-
regulatory bodies, such as the National Advertising Division of the
Better Business Bureau (NAD), apply similar standards for determining
whether disclosures are effective. Section B of this chapter discusses
FTC, NAD, and federal court precedent regarding disclosures, and offers
recommendations on how to craft disclosures that will pass muster with
courts and regulators.
Disclosures online and on the small screens of mobile devices and
other devices are of increasing concern to regulators. The FTC in 2013
updated its Dot Com Disclosures guidelines, originally issued in 2000.
Advertising Claim Substantiation Handbook
Section C of this chapter addresses guidelines relating to disclosures for
online advertisements, mobile devices, and other devices, as well as
other issues regarding online and mobile disclosures. It also reviews
other FTC guidance on disclosures in connection with endorsements and
environmental claims, as well as claims involving “free” products or
In addition, there are rules governing specific kinds of advertising—
such as negative option (opt-out) marketing or claims directed at
children. Section D of this chapter discusses disclosure requirements
some of those special categories of advertising.
B. Standards for Effective Disclosures
1. The FTC’s Standards
The FTC defines false advertising as “a representation, omission or
practice that is likely to mislead the consumer acting reasonably in the
circumstances, to the consumer’s detriment.”1 Furthermore, the
“representation, omission or practice must be a material one for
deception to occur.”2
In evaluating whether an ad is likely to mislead, the FTC considers
the advertisement as a whole, including words, pictures, and phrases as
well as any disclosures, to make sure that the “net general impression
conveyed” by the ad is clear and accurate.3 Disclosures may augment or
clarify the message, but they cannot be used to contradict the message
reasonably conveyed by the advertisement. 4
1. FED. TRADE COMMN, FTC Policy on Deception (Oct. 14, 1983),
available at
2. Id.
3. Standard Oil of Cal., 84 F.T.C. 1401, 1471 (1974), aff’d as modified, 577
F.2d 653 (9th Cir. 1978), reissued, 96 F.T.C. 380 (1980); Fed. Trade
Comm’n, Advertising FAQ’s: A Guide for Small Business (2001)
available at
ising-faqs- guide-small-b usiness.pdf.
4. FTC Policy on Deception (Oct. 14, 1983), available at

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