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Stay Legal, Don't Make Ad Fine Print Too Small

By Stephanie Rabiner, Esq. | Last updated on

It's no secret that business owners like to bury important terms and details in fine print and obscure locations. They do it in print ads, on television and on the Internet. It's a common practice.

But in some situations, using fine print is deceptive advertising. Federal Trade Commission rules require all significant conditions and limitations to be clearly and conspicuously presented.

Densely packed lines of fine print, footnotes, and fast-scrolling disclosures often don't meet this obligation. 

The agency has luckily provided a little bit more guidance on the issue of fine print and deceptive advertising. Advertisements are deceptive when they omit material terms or mislead consumers. If a disclosure or term is necessary to prevent such deception, it must be conspicuously placed so that consumers will actually notice it. The FTC adds the following:

A fine-print disclosure at the bottom of a print ad, a disclaimer buried in a body of text unrelated to the claim being qualified, a brief video superscript in a television ad, or a disclaimer that is easily missed on a website are not likely to be effective. Nor can advertisers use fine print to contradict other statements in an ad or to clear up misimpressions that the ad would leave otherwise.

The FTC has and will enforce these rules. In 2009, it fined a web company for placing a fine-print disclosure at the bottom of the screen. Consumers were able to complete the transaction without ever having noticed it.

Regulators have also gone after companies that buried additional costs in fine-print paragraphs; that clarified statements with video superscripts placed over distracting backgrounds; and that used footnotes to let consumers know they'd need to buy an additional product.

So, the next time you create an advertisement or post a new product on your website, decide whether your fine print is a deceptive advertisement. If you're in doubt, go a little bigger and place your disclosures as close to the price as possible.

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