The Federal Trade Commission announced this week that it sent warning letters to over 60 national advertisers for failing to make adequate disclosures in print and television advertising in connection with a recent initiative called “Operation Full Disclosure.” While the list of advertisers receiving letters was not made public, the FTC noted that its review covered a number of different industries including personal care products, food, drugs, household items and electronics. The focus of the initiative is to remind advertisers that disclosures in advertising that communicate material information to the consumer, such as material limitations regarding the advertiser’s product, must be clear and conspicuous. As such, disclaimers should “use clear and unambiguous language and should stand out in the advertising.” In a related blog post on the FTC’s website, the FTC explains the “4Ps” it uses to evaluate advertising disclosures: 1) Prominence (is it big enough to read easily?); 2) Presentation (is it easy to understand?); 3) Placement (is it someplace consumers are likely to look?); and 4) Proximity (is it close to the claim it qualifies?). The FTC cautioned that advertisers who did not receive a letter should not assume there are no issues with their advertising disclosures. Instead, advertisers are encouraged to use this as an opportunity to reexamine the adequacy of their advertising disclosures.
TIP: If an advertising claim requires qualification or additional information to be non-misleading, that additional information must be clearly and conspicuously disclosed. Advertisers should evaluate the sufficiency of their disclosures, keeping in mind the “4Ps” above.