Our neighbor announced in December that his New Year’s resolution was to begin a strict paleo diet. On January 2, while he was visiting our home, we asked how the diet was going. He responded that the New Year’s resolution did not begin until January 3, because he was “on holiday” until then given his employer’s official observance of New Year’s Day on the first work day of the year, January 2.
Mike’s proclamation regarding his New Year’s resolution could have been presented as follows:
My New Year’s resolution is to adopt a paleo diet.*
*With the first day of the new year beginning on the first calendar day of the year that is not a federal holiday observed by my employer as a paid day of leave.
Did you know….. that disclaimers that are not reasonably conspicuous are not legally effective?
Disclaimers need to be reasonably conspicuous to be legally effective. Especially on a web site where claims and disclaimers may not appear on a single screen for viewing purposes This means that the reader may need to be placed on notice with an asterisk every time the claim appears. There is no absolute rule on asterisks and disclaimers (also called legal disclosure language) – but if a consumer would not see the qualifying language then the language is not effective.
These considerations also play a role in crafting sponsored advertisements and digital “pop up” ads that include limited characters, and the Federal Trade Commission continues to refine its guidance in this area — sometimes with particular specificity.
As consumers become more sophisticated, the standard for acceptable disclosures are likely to shift. But the law remains the same, in order to be lawful, advertising may not be false or misleading as presented to consumers in context.