MrConsumer has been a consumer advocate for over 35 years, and he is always astounded by the number of sneaky (and potentially illegal) practices that not only companies will use, but that shoppers will put up with, or even defend.
The comments on this blog are often a reflection of that attitude, and I find that troubling. It suggests that consumer advocates have not educated the public enough about what are acceptable practices and which ones cross the line.
Some consumers and too many businesses think that as long as they make a disclosure or disclaimer SOMEWHERE that that is all that is necessary.
The Staples story we brought you last week is a perfect example. It is not okay to run an advertisement for goods at a stated sale price but fail to mention IN THE AD that you have to buy other goods totaling $50 in order to get the goods at the advertised price. Too many commenters and the company itself thought it was enough just to let shoppers know before they checked out that there was a catch in the offer.
That is not what the law says in Massachusetts (and probably in some other states). One of the primary principles in consumer law is the requirement of disclosing key facts upfront. What needs to be “clearly and conspicuously” disclosed? Anything that might mislead the prospective purchaser or induce him or her not to enter into the transaction.
“It is an unfair or deceptive act for a seller to fail to clearly and conspicuously disclose in any advertisement any material representation, the omission of which would have the tendency or capacity to mislead reasonable buyers or prospective buyers.”
“A disclosure is not clear and conspicuous if any material terms of the offer that affect the price of an item, impose conditions on acceptance of the offer, … are not disclosed in the advertisement itself…”
“Even though the true facts are subsequently made known to the buyer, the law is violated if the first contact … is secured by deception.”
Here are some examples of specific requirements of the law (at least in MA), and how they might apply to various advertising practices.
Under the law, important disclosures must be “clear and conspicuous.”
“Clear and conspicuous … means that the material representation being disclosed is of such size, color, contrast or audibility and is so presented as to be readily noticed and understood by a reasonable person to whom it is being disclosed.”
Is it clearly disclosed that by ordering ProActiv for $19.95 that you will also be signing up for regular monthly deliveries of the product? Is the average TV viewer likely to have even noticed that small disclosure for the few seconds it was on the screen?
“Clear and Conspicuous, is not clear and conspicuous unless such material representation … appears in type which is a minimum of eight point type;”
Burying key information in a fine print footnote is frowned upon. The above footnoted disclosures (note: the type size above may appear larger on your computer screen than it actually is) are actually part of a single paragraph where each line is 20 inches long, spanning two pages in a multi-page circular. The type size is five point type, not the minimum of eight point type required assuming there is something important in this footnote that is required to be clearly and conspicuously disclosed. Few if any human beings can read straight across a densely packed 20-inch line of type, with about 90 words per line, line after line, to understand what is trying to be conveyed. This is a perfect example of the belief that as long as a disclosure is made, no matter how or where placed, that that is sufficient.
A disclaimer can’t be used to change the meaning of the original claim.
“It shall be an unfair or deceptive act or practice for a seller to use a disclosure set apart from the primary claim to which it refers, such as by use of an asterisked footnote, if such disclosure imparts a meaning that contradicts or materially alters the meaning of the term, statement or claim to which it refers.”
You’re across the street from this store and you see that everything in the store is half price. But as you walk closer, you see the disclaimer that certain items are excluded. Did you lose anything other than a few seconds, no. But stores can’t try to lure you in with a false claim, even if the truth is made known in an asterisked disclosure. The sale claim should have been worded to be true on its face.
The bottom line is this: you are entitled to full and clear disclosure upfront in advertising. Don’t settle for less. And don’t give advertisers a free pass when they fail to do this.