On September 23, 2014 the Federal Trade Commission (“FTC”) announced that it had sent warning letters to 60 national advertisers (including 20 of the 100 largest advertisers in the country) that the disclosures in their advertisements did not meet the FTC’s “clear and conspicuous” standard. The warning letters went to a wide variety of advertisers—everything from cleaning products to computers to hotel rooms—and requested that the advertiser advise the FTC if it would be taking corrective actions.
This sweep is a good reminder to all advertisers to review disclosures for compliance issues. Pursuant to the FTC’s “clear and conspicuous” standard a consumer should be able to see and understand a disclosure. When evaluating whether a disclosure is sufficient, the FTC examines the following factors among other things:
- How large is the disclosure text?
- Does the disclosure use easily understood language?
- Is the disclosure prominent on the screen or printed page, or is it buried within other text?
- Do other aspects of the ad, such as moving images or background color, make the disclosure difficult to read?
As more advertising shifts away from traditional media (e.g., television and print) and toward digital media (e.g., websites, tweets, posts, and blogs) ensuring that a disclosure is clear and conspicuous has become increasingly complex.