When do TV commercials need to use disclaimers?

Viagra was the first erectile dysfunction drug to sponsor a NASCAR team. See more pictures of NASCAR.
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In the summer of 1941, television was in its infancy. The Brooklyn Dodgers were about to take to the airwaves. It wasn't the first baseball game ever televised, but the day marked another first. Before the program, audiences saw a picture of a map of the United States along with a ticking clock and the words -- "America Runs on Bulova Time." On July 1, 1941, the TV commercial was born.

S­inc­e th­at time, TV commercials have either progressed to unseen heights, or regressed into the doldrums of mindless drivel, depending on whom you ask. TV commercials make up a huge part of the overall advertising pie. The Super Bowl is as well-known now for its c­ommercials as it is for the football game. A 30-second spot could cost a company a staggering $3 million to air. When this amount of money is involved, it's no surprise companies want to cover their bases when it comes to the content of each advertising spot. Misleading advertising is common, and although it's regulated somewhat by the Federal Trade Commission (FTC), it still flies under the radar thanks to something called the ad disclaimer.

We've all seen them. Sometimes the disclaimer is in tiny fine print stuffed at the bottom of the screen for a handful of seconds. Other times it's actually spoken by a voice-over artist. Beer advertisers encourage Americans to "please drink responsibly." Extreme auto spots show cars tearing through empty streets and either tell audiences, "Please do not attempt," or assure them ­that the driver is on a "closed course." Drug manufacturers apply an odd disclaimer to erectile dysfunction drugs -- "If you have an erection that lasts for more than four hours, please consult a physician."

There's no hard-and-fast rule on when ­disclaimers must be used. Most times it's based on what the TV network legal departments demand. Why the networks? Because they're looking to cover themselves in case someone decides to "try this at home." If a child recreates a stunt he or she sees in a commercial and is injured, the network that ran the ad would take the heat. Other times, the advertising client's legal department will demand a disclaimer to avoid potential lawsuits. This decision is usually made by the client before the commercial is even in the can. The FTC generally only gets involved when the ad makes claims regarding the following:

  • Health or safety of the viewer
  • Something consumers would have trouble evaluating for themselves
  • Subjective subject matter

­Other than these three areas, the network will step in and demand the voice-over or fine-print disclaimer. There aren't rules on exactly how fine the print should be, but the general rule is that it must be legible to the viewing public.

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Advertising Disclaimers

I'm Barack Obama and I approved this picture caption.
I'm Barack Obama and I approved this picture caption.
Chip Somodevilla/Getty Images

The Federal Trade Commission (FTC) regulates "truth in advertising." But what truth actually means is a bit murky and open to interpretation. If the ad makes definitive claims like, "Nine out of 10 dentists surveyed...," then there needs to be evidence to back that up. A common ad disclaimer you'll see for weight loss drugs is mandatory and regulated heavily by the FTC -- "in conjunction with diet and regular exercise...." One key rule the FTC mandates is that the disclaimer is made in the same manner as the claim. That's why you never see diet pill commercials where a human states that the product will cause you to lose weight. In that case, there would need to be a voice-over stating that it must be combined with diet and exercise, which would ruin the illusion. If the claim is made in print, as they always are with weight-loss drugs, the disclaimer can be made in print.

­Disclaimers can go a long way toward stretching the truth of the ad, but they can never correct statements that are actually false or inaccurate. The fine-print d­isclaimer is basically a loophole. After the advertiser has made the claim, there's very little chance that a fine-print disclaimer can change anything about what the viewer just saw. The claim is already imbedded in the mind of the audience, and there's really no way to strike it from the record. Most of the fine print disclaimers are too small and not onscreen long enough to read anyway. The FTC states that fine-print disclaimers are "not likely to be adequate." But the fact that most ad claims simply aren't worth the time and money to pursue action against keeps them on your TV screen. If the commercial doesn't concern a consumer's health or safety, it's not likely to get the attention of the FTC.

There's another large area of commercial advertising that's regulated, and very strictly, by a different body. These are the political ads you see slinging mud across your TV screen each election year, and they're overseen by the Federal Election Commission (FEC.) The FEC has strict guidelines as to when disclaimers are necessary, exactly what they need to convey and precisely how they're delivered.

One of the main disclaimers political ads are required to convey is who paid for the commercial. You've heard these disclaimers countless times -- "Paid for by the committee to elect Joe Smith." If the candidate's campaign is the one who paid for the ad, it doesn't require a disclaimer, but the subject matter does need an endorsement from the actual candidate. In this case, the end of the commercial needs one of two things:

  • A full-screen shot of the candidate making a statement that he "approved this message"
  • A voice-over and image of the candidate that occupies at least 80 percent of the vertical screen height

­In addition to either one of these disclaimers, there also must be a written disclaimer added to the end that clearly displays the message has been approved. The FEC gets a bit more specific than the FTC when it comes to their definition of clearly. It mandates a reasonable degree of color contrast between the background of the ad and the disclaimer's lettering for a period of no less than four seconds. Failure to comply with these rules can result in penalties from the FEC, most notably not allowing candidates to run ads for the cut rate that networks allow during campaign season. This can put a serious dent in the funds of a candidate, so campaigns are quick to comply.

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Sources

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  • "Political Advertising Disclaimers: Whose Ad Is It Anyway?" wcsr.com. 2008. http://www.wcsr.com/resources/pdfs/PL_PoliticalAdvertisingDisclaimers.pdf
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