Navigating Disclaimers

Navigating Disclaimers

What’s a main claim versus a disclaimer? When can you use a disclaimer?

What is a “main” advertising claim?

The main claim of an advertisement is the key marketing message in the ad, when taking into the general impression created by words, images and all other aspects of the advertising. Claims can include representations about consumer preferences, competitive position or comparison, and claims about a product’s attributes or how well it performs. Ads can have many main advertising claims, but if making a specific claim, an advertiser must have “adequate and proper” and “competent and reliable” testing that substantiates its advertising claims. Make sure you get this support before publishing your claim.

How do disclaimers and footnotes fit in?

The starting point for designing your campaign should be to fit all relevant information in the main advertising claim. Try to avoid using a disclaimer or a footnote if at all possible.

If a claim requires additional context, then a disclaimer or footnote can be used to provide this additional information. Disclaimers or footnotes may only be used to clarify the main claim, however, and cannot be relied upon to correct what would otherwise be a false or misleading representation. If the general impression of the main claim on its own is misleading or false, the information provided in the disclaimer is likely not going to be able to overcome this false/misleading general impression.

For digital advertising, it is likely a low legal risk to provide your disclaimer “one click” away from the main claim, particularly when there are spacing limitations. For example, in a small-space banner or social media platform that limits the number of characters. But if doing so, be careful to ensure that the disclaimer is positioned somewhere clearly visible on the hyperlinked page, so that viewers are able to find it when clicking through from the ad. Otherwise you may not be able to rely on the disclaimer as forming part of the advertising.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Companies are encouraged to seek legal counsel to ensure compliance with applicable laws.

Kelly Harris
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