Essentially, there is no set formula prescribed to determine whether a disclosure is clear and conspicuous, the following recommendations should be considered: • The placement of the disclosure in an advertisement should be in close proximity to the claim they qualify (i.e., “trigger” term, the “price” or the incentive to be met). • Consumers should likely notice and understand the disclosures and that they are in connection with the representations that the disclosures modify. Simply making the disclosure available somewhere in the ad, where some consumers might find it, does not meet the clear and conspicuous standard. • The prominence of the disclosure. • Whether there are items that distract and draw attention away from the disclosure in other parts of the advertisement. • If the disclosure is understandable to the intended audience. • For disclosures in audio messages, they must be presented in an adequate volume and cadence. • For visual disclosures in televised messages, they must appear for a sufficient duration. • The size of the font of the disclosure should be readable (i.e., Maryland law requires font size 10 and bold for freight and processing charge disclosures if the charges are not included in the advertised price). • Hyperlinks • The hyperlink’s label should make it not only obvious to consumers to click on it for more information, but it should also show the consumer that the hyperlinked information relates to the qualifying information. • Label the hyperlink appropriately and in a style that is a typical hyperlink. • Since different websites use different signals for hyperlinks, dealers should use similar text, graphics, format and color throughout a single web page for easier identification of hyperlinks by consumers. • If you use a click-through page, it should display the complete disclosure prominently. It should not provide distracting visuals or extraneous information. Any “close” or “click-away” opportunities should be displayed discreetly and not block the disclosure information. • Consumers should not have to scroll to the entire bottom of the page to determine if they qualify for an incentive or financing offer. • If consumers have to scroll, then: • Use text and visual design cues to indicate that scrolling is required. • Text prompts such as explicit instructions should be used to alert the consumer that more information is available. • Avoid placing disclosures at the bottom of the screen with a blank space between the disclosure and the product because consumers may not continue reading or may not scroll to the bottom. vada.com 15
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