www.GADA.com | 93 Disclosure/Disclaimer Placement If an advertisement makes express or implied representations that have the capacity, tendency or effect of misleading consumers without certain qualifying information, the failure to disclose the information is a violation of the Fair Business Practices Act. Any necessary qualifying information must be clearly and conspicuously disclosed. The term “clear and conspicuous” means that the statement or representation is presented in a reasonably understandable form. A disclosure is clear and conspicuous, and therefore is effectively communicated, when it is displayed in a manner that is readily noticeable, readable and/or audible (depending on the medium), and understandable to the audience to whom it is disseminated.6 The effectiveness of disclosures is also enhanced by their proximity to the representation they qualify. Therefore, disclosures must be in immediate proximity to the terms they modify. Consumers should not have to search for terms and conditions at the bottom of the page or on the opposite side of an advertisement. Representations will be considered deceptive if necessary disclosures or disclaimers are not made, if material facts are not stated, and/or if disclosures or disclaimers are inconspicuous.7 A representation will be considered inconspicuous if consumers are required to search for disclosures or disclaimers in fine print or on the opposite side of an advertisement. Disclosures and disclaimers that attempt to modify the message should not be listed in the fine print, but instead in immediate proximity to the message. No disclosure or disclaimer should appear anywhere in the advertisement except for in immediate proximity to the term the disclosure or disclaimer modifies, and never beneath the name and address of the dealership. Examples of deceptive disclosure placement include, but are not limited to: 1. The use of asterisks, footnotes, or other symbols that are used to refer consumers to another place in an advertisement; 2. The use of any print or type size so small as to be not easily readable. Any type size 10 point or larger is deemed to be easily readable; 3. The use of color contrasts which render the text difficult to read; 4. The use of any unexplained abbreviation, term or jargon which is confusing, misleading and/or not readily understood by the general public, including, for the purpose of illustration only: a. W.A.C., O.A.C., F.M.C., T.T.T., T.T. & L., A.D.M., F.T.B., E.P.P., L.E.V., and terms of similar import; and b. Beacon score. 5. The use of inaccurate photographs or illustrations when advertising specific vehicles for sale or lease. For example, a photo of a four-door vehicle accompanied by a two-door vehicle price, or a deluxe model pictured next to a standard model price. Such terms as “pictures for illustration only,” “art work may vary,” “illustrations not exact,” or similar disclaimers are not acceptable; 6. The use of audio disclaimers that are confusing or unclear due to lower volume, the speed of the speaker, different voices, background noises or music, or the placement of the disclaimer before or after the main body of the advertisement; and 7. The use of terms such as “Select Models,” “Select Vehicles,” “A Special Selection,” and other terms of similar import should only be used in connection with advertised offers if, and only if, the advertisement specifies which models or vehicles are included in the offer. This office expects that its guidelines will be followed regardless of the media in which the advertisement is communicated. Therefore, as stated earlier, these guidelines apply to all forms of advertising, including internet advertising. In order to ensure that disclosures are clear and conspicuous in online advertisements, advertisers will often have to take care to clearly and conspicuously disclose material terms to consumers. To be sure that disclosures are clear and conspicuous, advertisers should: 1. Place disclosures near, and when possible, on the same screen as the triggering claim. 6 Cliffdale Assoc., Inc., 103 F.T.C. 110 at 183. 7 See, e.g., Energy Four, Inc. v. Dornier Medical Sys., Inc., 765 F. Supp. 724, 731-733 (D. Ga. 1991).
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