The Telemarketing Sales Rule (“TSR”) and Telephone Consumer Protection Act (“TCPA”) both require various disclosures to consumers, either during calls or texts, like the price of goods purchased, or before, e.g. that the consumer is consenting to be contacted by a business.
These disclosures are required to be “clear and conspicuous”, but that standard is not clearly defined, especially as different media are used to get consumer consent.
Everyone knows that a written disclosure in a tiny, unreadable font, for example, is not clear and conspicuous, but how big does the font need to be to be legal?
Where does the disclosure need to be on a webpage, or a television advertisement, even if its font size and color are clear?
In FTC v. Financial Education Services, the FTC gave businesses very specific guidance, and I want to highlight some of the more interesting advice. The case ended with a settlement, so this is only binding to the parties of that case, but it still shows what the FTC thinks “clear and conspicuous” means for TSR enforcement against anyone else.
First, if the disclosure is on a web page or other interactive electronic form, it must be “unavoidable”. The page can’t let the visitor skip to the consent box, for example, without viewing the disclosure.
Second, if a communication is delivered in multiple media, e.g. a television advertisement which is visible and oral, the disclosure must be made in both media (i.e. written and spoken).
Third, the disclosure can’t be contradicted by other information provided to the consumer.
The settlement document also includes other details, which I would be happy to discuss with you.
If you have questions about TSR or TCPA compliance, or other parts of this disclosure guidance, please contact me.
