A common standard in consumer rights law in the United States and, with slightly different language in the European Union, UK and other economies.
In the United States a number of statutes and regulations require “clear and conspicuous” notices of information and facts that may influence or caution the general public, for example the Consumer Financial Protection Act of 2010, (the Dodd-Frank Act) and its implementing regulations and various statements and policies issued by the Federal Trade Commission (FTC) – and the FTC has also advices clear and conspicuous notices in its Endorsement Guidelines. In general, clear and conspicuous means that disclaimers in advertising, marketing materials and other documents provided to consumers must be:
- Prominent – that is no say not small print briefly flashed in front of the consumer, or buried in a long recitation of extraneous details;
- Clearly presented in a way that the typical consumer can understand – so not written in dense legalese and multi-clause sentences;
- Placed in a location where the consumer is likely to read and see it and not in a manner that discourages reading; and
- In close proximity to the statements it qualifies, caveats or limits.
A huge range of potential statements and assertions require caveats, disclaimers and clarifications – for example, paid (or remunerated in other ways) celebrity endorsements in advertising must disclose that the celebrity is receiving payment or another benefit for making the endorsement.
In Europe, for example, the Consumer Rights Directive 2011/83, requires notice of various rights to be given to consumers, including the right of consumers to withdraw from distance contracts. The CJEU has held that this notice should be “clear and conspicuous.” Similarly, it is generally required that notices provided to persons under the General Data Protection Directive or GDPR must be clear and conspicuous.