Disclaimer.

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FTC.

Disclaimers

Disclaimers

More and more we are seeing disclaimers at the foot of websites, on social media pages, in direct mailers, in 15-second TV ads, in videos, and on products.  The savvy marketer understands the importance of affixing disclaimers to their advertising material.  Yet, while they may understand the need for disclaimers, they do not often properly draft them or place them, nor do they truly appreciate the “clear and conspicuous” requirement.

Both federal and state law govern advertising of products and/or services.  In particular, the Federal Trade Commission(FTC) has adopted an reasonable definition for a “clear and conspicuous” disclaimer:

“When written, clear and conspicuous information generally is printed in a type size that a consumer can readily see and understand; that has the same emphasis and degree of contrast with the background as the sales offer; and that is not buried on the back or bottom, or in unrelated information that a person wouldn’t think important enough to read. . . . When disclosures are oral, clear and conspicuous means at an understandable speed and pace and in the same tone and volume as the sales offer.”

The National Advertising Division of The Council of Better Business Bureaus (“NAD”) has adopted a similar approach in determining whether a disclaimer is sufficiently “clear and conspicuous”:

“Factors to be considered in assessing whether material product information is clearly and conspicuously disclosed include: the prominence of the information that needs to be disclosed, its proximity to the underlying claim that it is intended to qualify and (particularly in the case of Internet advertising) the likelihood that consumers will have notice of the existence of this information before making a purchase.”

In order for a disclaimer to really be effective, it must be easily understood.  One way to accomplish that is by using language appropriate to your target market.  For example, if your target market consists of children, then your disclaimer should include more disclosures and appropriate disclaimers than if you were advertising to adults.

What about you, do you have disclaimers?

If so, have they been properly drafted in language that could pass the “clear and conspicuous” test? Have they been properly placed? If not, fix it, before it is too late.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Facebook Fan Page, on my Twitter page, in one of my LinkedIn Groups.

SEC. Twitter. Tweet. Netflix. Facebook.

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SEC Regulation Fair Disclosure.

Twitter. Facebook. SEC

Twitter. Facebook. SEC

In August of 2000, the Security and Exchange Commission (SEC) announced a rule that publicly traded companies must divulge material information to all investors at the same time. In other words, the information cannot be released to only certain investors and cannot be released piecemeal. The rule is referred to as SEC Regulation Fair Disclosure or the Regulation FD.

Since the implementation of SEC Regulation FD in 2000, much has changed, particularly the advent of Social Media venues e.g., Twitter and Facebook.

Netflix Gets it Wrong on Facebook.

In July of 2012 Netflix CEO Reed Hastings announced on his Facebook page figures on the company’s monthly viewership for the previous month, stating that “Netflix monthly viewing exceeded 1 billion hours for the first time ever in June.” The seemingly innocent post on the growing success of Netflix has landed Mr. Hastings in hot water with the SEC.

The SEC is not only looking into whether Netflix allegedly violated Regulation FD, but whether they also violated 10b-5.  Section 10b-5 deals with deceit and fraud in the selling or purchasing of securities, and is more commonly known as the insider trading statute.

The argument in defense of Netflix is that Facebook is indeed a public company, and therefore, there was no intent to hide information from certain investors or to favor others. Mr. Hastings has over 200,000 subscribers to his Facebook account.

In the past, the SEC has stated that a website or blog could be considered “public” in regards to Regulation FD as long as the website is recognized as a venue for distribution of information – if investors know to look for it there.

This case, once again, highlights the effects that the social media boom is having on businesses, small and large. Taking advantage of the benefits while avoiding the pitfalls can be challenging, to say the least.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Law Facebook Fan Page, my Twitter Law Page, or in one of my LinkedIn Groups.

 

 

 

 

 

 

 

Disclaimer. Internet law. False and Misleading Advertising.

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Disclaimers and False & Misleading Advertisements.

Disclaimers

Disclaimers

More and more we are seeing disclaimers at the foot of websites, on social media pages, in direct mailers, in 15-second TV ads, in videos, and on products.  The savvy marketer understands the importance of affixing disclaimers to their advertising material.  Yet, while they may understand the need for disclaimers, they do not often properly draft them or place them, nor do they truly appreciate the “clear and conspicuous” requirement.

Both federal and state law govern advertising of products and/or services.  In particular, the Federal Trade Commission (FTC) has adopted an reasonable definition for a “clear and conspicuous” disclaimer:

 “When written, clear and conspicuous information generally is printed in a type size that a consumer can readily see and understand; that has the same emphasis and degree of contrast with the background as the sales offer; and that is not buried on the back or bottom, or in unrelated information that a person wouldn’t think important enough to read. . . . When disclosures are oral, clear and conspicuous means at an understandable speed and pace and in the same tone and volume as the sales offer.”

The National Advertising Division of The Council of Better Business Bureaus (“NAD”) has adopted a similar approach in determining whether a disclaimer is sufficiently “clear and conspicuous”:

“Factors to be considered in assessing whether material product information is clearly and conspicuously disclosed include: the prominence of the information that needs to be disclosed, its proximity to the underlying claim that it is intended to qualify and (particularly in the case of Internet advertising) the likelihood that consumers will have notice of the existence of this information before making a purchase.”

In order for a disclaimer to really be effective, it must be easily understood.  One way to accomplish that is by using language appropriate to your target market.  For example, if your target market consists of children, then your disclaimer should include more disclosures and appropriate disclaimers than if you were advertising to adults.

What about you, do you have disclaimers? If so, have they been properly drafted in language that could pass the “clear and conspicuous” test? Have they been properly placed? If not, fix it, before it is too late.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Feel free to join my conversation on my Facebook Fan Page, on my Twitter page, in one of my LinkedIn Groups.