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Clear and conspicuous'

November 22, 2010
Make sure disclosures are plain, easy to connect: BBB ad scanners
Officials of the BBB/CATA Advertising Review Program said they see increasing dealer ads that are not "clear and conspicuous," under requirements in the Illinois rules concerning motor vehicle advertising.

Better Business Bureau employees scour area dealers' print and electronic ads for compliance with the state rules. If infractions are spotted, the offending dealers are alerted to change their ads. If they remain unchanged, the BBB forwards the matter to the Illinois attorney general's office.
Disclosure language in the footnotes of some ads do not appear to relate to anything above because there are no corresponding symbols, said Steve Bernas, president and chief executive of the BBB-Chicago office.

"There is only one symbol, and that is at the disclosure alone," said Bernas. "The reader must guess as to which offer this disclosure relates. Clearly, this practice results in confusion that would not occur if more disclosures appear in the ad itself, closer to the offers they explain."

Under the rules, "clear and conspicuous" concerns both the type size and the positioning of any disclosures. Type must be at least 10 points to be deemed "readily noticeable," under the definition.
"Type size smaller than 10 points generally does not comply with the rule," Bernas said. "In addition, type size less than 10 points is especially difficult to read as reverse type-light letters against a dark background. The BBB frequently reviews disclosures made this way that are difficult or impossible to read."

Bernas said technical disclosures, like lease and credit terms, can be confusing when the type is set too close together and appears on dark backgrounds.

Section 475.110 of the state rules requires disclosures to be "in close proximity to the statement, representation or term it clarifies, modifies or explains." A disclosure must be "readily noticeable; reasonably understandable . . .; and not contradictory to any terms it purports to clarify, modify or explain."

Bernas said the BBB is seeing increasing instances of disclosures that are not in close proximity to the offers they explain. Most ads include several specific and distinct offers, including finance and lease offers, which require disclosures mandated by the advertising rules and by federal and state laws.

"Many advertisements," said Bernas, "show one extensive footnote at the bottom of the ad that is intended to contain most, if not all, disclosures. These disclosures relate to numerous, separate and specific offers which are unrelated-like rebates, price matching, and special pricing events.

"A single footnote can be very confusing because some disclosures are not in close proximity to the specific offers they explain. This is exactly what the clear and conspicuous standard is intended to prevent and why the requirement is 'close proximity.' "

Bernas also said the BBB staff is seeing symbols used that are so small, both in the ad and the footnote, that it is nearly impossible to match shapes and related offers and disclosures. "Consequently," he said, "the clear and conspicuous standard is not met."