What Makes a Disclosure Clear and Conspicuous

The short answer

Clear and conspicuous is a defined term, not a compliment.

The shared core is two words: difficult to miss, and easily understandable by ordinary consumers. Everything else builds out from there.

The most consequential piece for anything you read online is unavoidability. The Federal Trade Commission's rule on consumer reviews puts it plainly. A disclosure is not clear and conspicuous if you have to take any action to see it, clicking a link or hovering over an icon included.

That single line disqualifies a large share of how disclosures are actually built on the web.

Two texts, one idea, different verbs

The Endorsement Guides and the Rule on the Use of Consumer Reviews and Testimonials both define the phrase, in closely parallel language. The difference is what kind of instrument each one is.

The Guides are administrative interpretations. Their definition is written in the conditional: a disclosure should be made in the visual portion, should stand out, should be unavoidable in interactive media.

The rule is a rule. Its definition is written as requirements: the disclosure must be made through the same means, must stand out, must be unavoidable.

Both open the same way. Clear and conspicuous means the disclosure is easily noticeable, meaning difficult to miss, and easily understandable by ordinary consumers.

Neither one is about font size alone. Both are about whether a real person reading normally would notice and understand.

The eight tests in the rule

The rule's version is the most concrete text available, and it is worth walking through because each item names a real failure.

Same channel. In a communication that is only visual or only audible, the disclosure must be made through that same means. Where a communication uses both, the disclosure must be presented in at least the same means as the representation that required it.

Visual prominence. A visual disclosure must stand out from any accompanying text or other visual elements, so that it is easily noticed, read and understood. Size, contrast, location, how long it appears and other characteristics all count toward that.

Audible clarity. An audible disclosure must be delivered in a volume, speed and cadence sufficient for ordinary consumers to easily hear and understand it.

Unavoidable online. In any interactive electronic medium, such as social media or the internet, the disclosure must be unavoidable. The rule then closes the loophole by name: it is not clear and conspicuous if a consumer must take any action, such as clicking a hyperlink or hovering over an icon, to see it.

Plain words, right language. It must use diction and syntax understandable to ordinary consumers, and must appear in each language in which the representation requiring it appears.

Every device. It must meet these requirements in each medium through which it is received, including all electronic devices and face-to-face communication.

No contradiction. It must not be contradicted or mitigated by, or inconsistent with, anything else in the communication.

The audience you chose. Where the representation or sales practice targets a specific audience, such as children, the elderly or the terminally ill, ordinary consumers includes members of that group.

Four ways a disclosure fails, from the Guides' own examples

The Endorsement Guides illustrate the definition with cases that map straight onto things you have seen.

The profile page. A paid endorser discloses the relationship only on the profile pages of their social accounts. That is not clear and conspicuous, because people seeing the paid posts could easily miss it.

Behind a link. The disclosure exists in the post, but you have to click a control labeled more to see it. If the endorsement is visible without clicking and the disclosure is not, the disclosure is not unavoidable and therefore not clear and conspicuous.

The platform's own tool. An endorser relies solely on a built-in disclosure feature. It appears in small white text against a light background, competes with unrelated text laid over the image, and the post shows for only a few seconds. Easy to miss, so not clear and conspicuous.

The wrong screen. A disclosure that is clear and conspicuous on a computer browser but not when the same advertisement renders on a phone is inadequate, because some people will see it on a phone.

The Guides add one more that most rules never reach. Where a marketer microtargets a foreign-language version of an advertisement to people who cannot read English, a typical-results disclosure shown only in English does not work. Adequacy is judged from the perspective of the people who were targeted.

The audience is part of the definition

This is unusual and worth pausing on, because it moves the standard rather than the design.

Both texts say that when an endorsement or a sales practice targets a specific audience, ordinary consumers includes members of that group.

The Guides give an example built on that. An advertisement aimed at older consumers, using endorsements represented as coming from real users, discloses in both audio and visual form that the people shown are actors. Whether that disclosure is clear and conspicuous will be evaluated from the perspective of older consumers, including those with diminished auditory, visual or cognitive processing abilities.

The practical effect is that a company that chooses a vulnerable audience has raised its own bar. A disclosure sufficient for a general audience may not be sufficient for the one it aimed at.

The test that outranks all the tests

Design rules can be satisfied by a disclosure that still fails, and the Commission says so.

Its health advertising guidance states the ultimate test: the net impression consumers take from an advertisement with the disclosure in it. If a significant minority of consumers still take a misleading claim from the advertisement despite the disclosure, the disclosure is not sufficient.

The same guidance says plainly that disclosures made through hyperlinks are avoidable.

It also fixes the outer limit. A disclosure might clarify an ambiguous claim, but it cannot directly contradict one. Where an effective disclosure is not possible, the claim should be modified so that a disclosure is not necessary, or the claim should not be made.

The Endorsement Guides say the same thing about typical results in different words: to be effective, the disclosure must alter the net impression of the advertisement so that it is not misleading.

A third definition, for prescription drug ads on television

The Food and Drug Administration uses a related phrase for a narrower purpose, and its version is a five-part test.

For prescription drug advertisements presented directly to consumers in television or radio format, the statute requires that the major statement about side effects and contraindications be presented in a clear, conspicuous and neutral manner.

The regulation says when that standard is met. The statement must be in consumer-friendly language that is readily understandable. Its audio must be at least as understandable as the rest of the advertisement, in volume, articulation and pacing.

On television it must be presented concurrently in audio and text. The text must display either the verbatim key terms and phrases from the audio or a verbatim complete transcript. It must also appear long enough to be read easily, which the regulation treats as beginning at the same time as the audio and ending at approximately the same time.

The text's font size and style, its contrast with the background, and its placement must allow easy reading. And during the major statement, the advertisement must not include audio or visual elements, alone or together, that are likely to interfere with understanding it.

That last clause is the interesting one. It is a rule against distraction, written because distraction was the technique.

And one more, for anything that bills you again

A fourth use of the phrase sits in statute and reaches any subscription sold online.

The Restore Online Shoppers' Confidence Act makes it unlawful to charge a consumer for goods or services sold in an internet transaction through a negative option feature unless the seller does three things.

It must provide text that clearly and conspicuously discloses all material terms of the transaction before obtaining the consumer's billing information. It must obtain the consumer's express informed consent before charging a card or account. And it must provide simple mechanisms for the consumer to stop the recurring charges.

Note the sequence in the first one. The disclosure has to come before the billing details, not on the confirmation screen and not in an email afterward.

Checking a page yourself

You can run most of this from the reader's seat, and it takes about a minute.

Did you have to do anything to see the disclosure? Click, tap, hover, scroll past the purchase button, open a footer. If yes, one definition already says it does not qualify.

Is it near the thing it qualifies, or is it in a different part of the page? Adjacency is what the Commission's examples keep rewarding.

Can you read it as easily as the claim beside it? Same size, same contrast, same time on screen.

Does anything else on the page pull the other way? A disclosure that is contradicted or mitigated by the rest of the communication fails on its own terms.

Now run it on this site, since it takes affiliate commissions and is inside the subject. The short disclosure sentence sits in the page text above the buttons it applies to, and it states how many of the providers compared here are paid partners. The longer explanation is a click away, on its own page; the sentence beside the buttons is not.