New Jersey regulators reversed a rule that required any disclaimer text (i.e. “Terms and Conditions apply”) on an advertisement to be “set forth in at least 10-point type.”  The New Jersey Division of Consumer Affairs implemented the rule in January, 2012, and afterwards elicited comments from industry advocates.  The rule was a change to Section 5 of part 13:45A-9.2 of the Department of Consumer Affairs’ regulation regarding general advertising practices.  AT&T, one of the state’s most active advertisers, immediately raised concerns about the rule, noting that 10-point font size might be too large for some ads, or far too small for others.  Under the original rule, a billboard and an internet advertisement would have the same font size requirement, leading to what AT&T’s representatives argued was an absurd result. 

Agreeing with AT&T, the state regulators decided to strike the original rule and propose a new rule that removes the font size requirement in favor of a “clear and conspicuous” standard.  The new language reads as follows: “Disclaimers permitted or required under this section, such as ‘terms and conditions apply’ and ‘quantities limited,’ shall be set forth in a type size and style that is clear and conspicuous relative to the other type sizes and styles used in the advertisement.” Comments on the proposed rule must be submitted by June 15, 2012.  The clear and conspicuous standard is a favorite of the Federal Trade Commission (FTC).  As advertising lawyers, we are constantly reviewing ads to ensure that disclosures meet the clear and conspicuous standard, which is not an easy task when reviewing online and mobile advertisements.  The FTC explains what it thinks clear and conspicuous means in its 12 year old online advertising disclosure guidelines known as Dot Com Disclosures.  However, note that those guidelines are under review for possible revision, as much has changed since the guidelines were originally published.  We will be at a public workshop the FTC is hosting on May 30th as part of its review process.