Published Articles

June 20th, 2004

Thinking About Using “Mouse Type”?

When a script finally gets the green light from the client, that approval often comes with a catch: the lawyers want you to add some disclosures. After cursing out the lawyers, and worrying that the creative will be ruined, people start asking pointed questions. Are these disclosures really necessary? Our competitors aren’t disclosing that, so why should we? Can we put the disclosures in fine print?

When are disclosures required?

The Federal Trade Commission considers an advertisement to be deceptive if it is likely to mislead a reasonable consumer about a purchasing decision. Disclosures are generally required when more details about a claim or an offer are needed in order to make sure that the advertisement is not deceptive. Often, the way that you determine what information needs to be disclosed is by asking the question, "what information do consumers need to know so that they will not be confused about something that is important to them?" Importantly, disclosures that do not merely qualify a claim, but actually contradict what is being said, are not likely to correct a deceptive ad, no matter what they say.

Clear and conspicuous?

If disclosures are needed in order to clarify a claim or an offer, then the disclosures generally must be clear and conspicuous. Although some laws dictate what terms must be disclosed, as well as their size and placement, for the most part, whether disclosures are clear and conspicuous is going to depend upon what consumers take away from the ad. Are consumers likely to see and understand the disclosures? Here are some factors to consider.

Are the disclosures understandable? A short disclosure that is written in simple, easy-to-understand language is likely to be much more effective than a lengthy one that includes many qualifications, technical jargon, unfamiliar abbreviations, and other confusing terms. Special care must be taken when advertising to more vulnerable audiences – such as young children and the elderly – who may be more easily confused.

Are the disclosures prominent? Are the disclosures in tiny print or part of a dense block of text? Are they "hidden" in a section of the ad where consumers are not likely to see them? Do they appear on screen only briefly? Are they included in both the audio and the video? Disclosures that are so inconspicuous that even an interested consumer won’t see or hear them are not likely to be effective.

Are the disclosures in close proximity to the claims they modify? The fact that disclosures could be found, if a consumer looks hard enough, is generally not sufficient. Consumers may miss disclosures that do not appear near the relevant claim. Since a reasonable consumer may not read the whole ad, advertisers generally have the burden to include important qualifications in a way so they won’t be missed.

Do other aspects of the commercial take your attention away from the disclosures, making them difficult to understand? A video disclosure that appears over moving graphics – a fireworks display, for example – is not likely to be as effective as text that is in a contrasting color scheme over a plain background.

Is the offer too complicated? Some offers are just too complicated to explain in a thirty second commercial. Government authorities are not very sympathetic to the argument that "we just couldn’t fit them in" or "no one else includes that information." If the information is important to consumers, then it usually needs to be disclosed in the ad, regardless of what others are doing, the complexity of the offer, or the media in which it appears.

Don’t be fooled by the fact that many ads that you see have "mouse type" that is completely unreadable. Inadequate disclosures not only cause consumers to be confused, but they often lead to government action and class action lawsuits.

- Jefrrey A. Greenbaum

This article first appeared in the June 2004 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.