Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Marketing communications must not materially mislead or be likely to do so (Rule 3.1) and must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify (Rule 3.9) and, they must be presented clearly (Rule 3.10).
Many marketers use footnotes or smallprint to help explain more prominent claims. To help marketers understand the level of clarification needed, CAP issued a Help Note on Claims That Require Qualification. This section concentrates solely on smallprint and footnotes and should be read in conjunction with the Help Note.
The Help Note states that smallprint may be used to clarify, but not contradict, claims either in the headline or the body copy. Minor qualifications, especially those that are annotated clearly by, for example, use of an asterisk, are likely to be acceptable in footnotes but significant qualifications are not. Failure to state a minimum spend (Guernsey Colour Laboratories Ltd t/a Directfoto, 23 July 2003), compulsory charges (Telco Global Ltd, 1 March 2006), major personal or geographical restrictions (O2 (UK) Ltd, 16 June 2004) and the like is usually enough for the ASA to uphold complaints. Anything that is likely to significantly alter a reader’s understanding of the headline should be stated clearly (Tiscali UK Ltd, 18 February 2004).
In 2013 the ASA ruled that Vodafone’s website was misleading, because it did not make clear that the monthly price of SIM-only call plans could increase during the length of the contract. The potential to increase the price in line with inflation was stated in the terms and conditions, three clicks away from the monthly prices. However, the ASA considered that it should have been made clear on the same page as the monthly price (Vodafone Ltd, 6 February 2013). Similarly, the ASA Upheld a complaint about a leaflet promoting monthly mobile contracts because it failed to make clear the advertiser’s right to raise prices in line with inflation, during the course of the contract (Hutchison 3G UK Ltd, 19 December 2012).
In 2006, the ASA upheld a complaint about a front page flash which described a 2-for-1 offer as “free for every reader” (Express Newspapers Ltd, 18 August 2006). Later that year, the ASA considered that information about whether a coin was legal tender was a significant condition that should be made clear in the body copy rather than in the smallprint (The Crown Collections Limited t/a The London Mint Office, 4 October 2006).
Point 7 of the Help Note makes clear that the acceptability of smallprint will depend on various factors: size, clarity, the significance of the qualification, the content and layout of the rest of the marketing communication, the nature of the medium (posters, for example, usually contain small text) and the prominence of the primary claim; there is no minimum point size that marketers should use.
In general, the average consumer should be able to read qualifying text easily (PlusNet plc, 2011). Qualifications should be positioned horizontally, and the size and the positioning of that small print should be prominent enough to capture a reader’s attention (Coty UK Ltd, 24 November 2010). The type should not be blurred (LVG Ltd, 14 September 2005; and Telco Global Ltd, 18 February 2004). Marketers should also make sure that they choose colour schemes which do not make smallprint difficult to read (Vodafone UK Ltd t/a Vodafone Ltd, 12th October 2005). In 2009, the ASA rejected a complaint about the legibility of a footnote on a digital poster because the information contained in the footnote was not material to a reader's understanding of the offer, and therefore, the ad was unlikely to mislead consumers. But the ASA urged caution when using digital media because it is difficult for marketers to ensure type is legible.
See the Help Note on "Claims that Require Qualification"