It's been a tough few years for disclaimers. First the FTC
came out with its revised
Endorsement Guides and said that the "results not
typical" disclaimer just didn't cut it anymore. Earlier
this year the FTC settled an energy savings case with window
manufacturers and followed it up with a study that
called into question at least certain types of "up
to" claims even when there is a reasonably prominent
disclaimer that discloses things like the average savings.
However, the disclaimer may be bloodied but it's not buried.
Disclaimers, of course, must be clear and prominent and in close
proximity to what they are disclaiming. Over the years the FTC has
provided guidance as to when you can't use disclaimers (to
contradict the claim); as to how long they should appear on
screen and how to use disclaimers on
websites . In our view, though, disclaimers remain more art
than science. A new DirecTV ad, though, is a textbook (and
deliberate) example of passing information
