Pity The Poor Disclaimer

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...