Clear and Conspicuous Disclosure in Practice

Clear and conspicuous is a performance standard. The disclosure is adequate if the ordinary consumer who receives the claim also receives the qualification, understands it, and gets it before deciding. It is inadequate if the consumer could plausibly miss it, whatever its size and wherever it sits on the page.

Start from the claim, not from the page

Every disclosure exists because something else in the advertisement needs it. That something is the triggering claim, and the whole analysis is measured from it. A qualification placed near the purchase button is badly placed if the claim it qualifies appeared three screens earlier and formed the consumer's impression there.

So the first step is to write the triggering claim down. Which sentence, image or demonstration would mislead without the qualification? Once that is identified, placement follows mechanically: the disclosure goes with the trigger. Identifying triggers is the same exercise described under express and implied claims and the net impression, and a trigger conveyed by an image needs a disclosure that a viewer of the image will see.

The factors that decide adequacy

Six factors carry the analysis. Proximity: how close the disclosure is to the triggering claim, in space and in the consumer's path through the material. Prominence: how it reads against the background, the surrounding type and the competing graphics. Distraction: whether other elements pull attention away at the moment the disclosure appears. Medium: whether the disclosure is delivered in the same channel as the claim. Repetition: whether it recurs wherever the claim recurs. Comprehension: whether the wording is plain enough for the intended audience.

The medium factor decides more cases than any other. A claim made in audio needs an audio disclosure, at a volume and cadence a listener can follow. A claim made in a fast-cut video needs on-screen text that stays long enough to read at the pace the video runs. Text under a video, in a description a viewer never opens, is not in the same medium as the claim.

Comprehension is the factor most often assumed rather than tested. A disclosure written in the vocabulary of the compliance department communicates nothing to the audience. Terms such as restrictions apply, subject to eligibility, and see terms for details tell a consumer that something exists without telling them what it is. The workable version states the condition itself: the price rises after the introductory period, the offer requires a two-year commitment, the shipping charge is not refundable.

What each format actually requires

Static images need the disclosure inside the image, not only in the accompanying text, because images are redistributed without their captions. Video needs both audio and on-screen text, with the text sized for a phone and held for the time an average viewer needs to read it. Audio-only formats need a spoken disclosure at the same pace as the claim.

Interstitial screens and multi-step flows need the disclosure on the screen where the decision is made, and again if the claim is restated. Sign-up and cancellation screens raise the same placement problem in a sharper form, as set out under negative option offers and cancellation, and a disclosure placed to satisfy a checklist rather than the consumer will be read as part of the design problem.

Some sectors impose their own placement rules that displace the general factors. Nutrition and health statements on packaging follow prescribed formats rather than a proximity test, as set out under nutrient content and health claim wording. Where a specific rule prescribes wording, size or location, that rule governs and the general standard applies to everything the rule does not reach.

Testing the disclosure before the campaign runs

Review the asset on the smallest supported device, in the placement it will run in, with sound off and with default settings. Whatever renders there is the disclosure the audience receives. Screenshots of the worst supported rendering belong in the campaign file alongside the substantiation, because the file is what answers a later inquiry.

Where a claim is qualified by a condition on eligibility, price or duration, the qualification should be written into the claim rather than appended to it. "Free shipping on orders over a stated threshold" is a claim that needs no disclosure; "free shipping" with a footnote is a claim that needs one and will often fail. The same principle governs pricing statements, where the reference and the qualification belong in the same line, as described in former price and was-now comparisons.

Finally, assign the review to someone who did not write the copy. The person who wrote the claim knows what it means and will read the disclosure as sufficient. The standard is what a consumer who does not know takes from the page, and only a reader without that knowledge can test it. A short written record of who reviewed which rendering, and what they were asked to look for, converts an informal check into evidence that the advertiser applied the standard rather than assumed it.