Fine print: A question of common sense

I spend a lot of my working life drafting legal disclaimers and a lot of my private time condemning them.

I spend a lot of my working life drafting legal disclaimers and a lot of my private time condemning them. As a consumer, I find them annoying. When Air Canada advertises a $199 fare to Vancouver and uses 6-point mice type to ‘clarify’ that the offer only applies to one-way Tuesday morning flights in April, I am not amused. When car dealers use full-screen supers which flash on and off in under two seconds to explain their deferred payment 0% financing offers, I am equally unamused. No one in Canada can read these supers. Why do advertisers bother?

The only explanation is a misunderstanding of the law. Disclaimers, like the financing super, which are mandated by provincial law or which clarify the terms of an advertised offer must be LEGIBLE to be effective. A representative of the U.S. Federal Trade Commission recently stated that in 30 years, there has not been a single case where companies were saved by a disclaimer in small print that modified what the big message in an ad was.

The same is true in Canada. The Competition Act dictates that an advertisement is judged according to the general impression conveyed. Fine print cannot materially change the offers in the main body of a print ad or in the audio portion of a TV spot. Section 1(d) of the Canadian Code of Advertising Standards is explicit: ‘Disclaimers…must not contradict more prominent aspects of the message and should be…clearly visible.’

The same principles are reiterated or necessarily implied in every code or regulation relating to advertising in Canada. The problem is that there are few specific guidelines. Advertisers always want to know the minimum font size for a footnote in a full-page newspaper advertisement. Or the minimum screen time for a television disclaimer. There are few explicit rules.

The Ontario Motor Vehicle Industry Council has marketing standards which state that print disclaimers relating to financing or lease disclaimers in car dealer advertisements must be no smaller than the type size used for classified ads in that publication.

In other cases it is a question of context and circumstances. The more important the disclaimer, the larger it should be. Important disclaimers are those which modify the general impression conveyed by the ad. For example, a contest with in-pack game cards needs a prominent statement on the front of the packaging explaining that ‘No purchase is necessary’ and where full contest details can be obtained. An advertisement for high demand products at very low prices should not use a footnote to explain that quantities are limited. This is critical information: it should be contained in a starburst next to the price.

Like most issues of advertising law, it is a question of common sense. Will consumers’ attention be drawn to the disclaimer? Are they compelled to read it? Is the disclaimer easy to find and easy to read? Is there sufficient contrast between the text and the background?

There are certain sectors that are plagued by impossible fine print: car rental companies, computer retailers, banks, airlines, car dealers. Generally there are two problems at work: headlines that over-promise and ads that contain too many complicated offers. A full-page newspaper advertisement for a leading computer brand is typical. There are 10 separate offers in the ad, each offer subject to multiple qualifications. This results in a 24-line unreadable footnote containing over 1700 words. A diligent consumer would take several minutes to read the entire footnote and even then would have trouble comparing the offers. Understanding an ad should not require a magnifying glass and an accounting degree.

The problem of the heavy-handed use of fine print appears to be intractable. There are, however, some partial solutions. In many cases, it is perfectly legal to omit the fine print if you refer consumers to a more accessible medium. For example, the unreadable financing terms in TV ads can often be replaced by the statement: ‘See your Saturday newspaper for complete details.’ In almost every case, fine print can be simplified by eliminating redundant and irrelevant information. In some cases, the laws have changed and disclosure requirements are more flexible than before.

The fundamental problem, however, is unlikely to change in uncertain economic times. Advertisers are more inclined than ever to over-sell and obfuscate. They would do well to remember another FTC pronouncement: ‘What the headline giveth, the footnote cannot taketh away.’

Susan Vogt practises marketing and trademark law at the Toronto offices of Gowling Lafleur Henderson LLP. She can be reached by phone at 416-862-5439 or by e-mail at susan.vogt@gowlings.com.