In advertising, affirmative disclosure is when an agency discloses all harmful and negative effects of a product or service offered in the advertisement.

Alternatively referred to as a proactive disclosure, an affirmative disclosure is the revelation of key information that could be damaging to the person revealing it, such as an advertiser's admission of a product or service's shortcomings.

Reasons for Affirmative Disclosures

An affirmative disclosure is usually damaging to advertisers but must be done to keep in line with government regulations. The disclosure should not only include the negative attributes of a product or service, but also encompass relevant information about any offers contained in the advertisement including:

  • Gift vouchers.
  • Money back offers.
  • Mystery rewards.
  • Sweepstakes.
  • Exchange offers.

The major objective of an affirmative disclosure is to protect consumers from unethical marketing tactics, false advertising, and fraud. Although market mechanisms and natural competition help to keep consumers well informed, there are instances where consumers are not given an honest depiction of a product or service that may misinform or manipulate their desire to purchase.

Affirmative disclosures also serve to protect marketers from the possibility of liability claims and unfair competition. Since an affirmative disclosure may trigger a significant change in the intention and attitude of consumers toward a particular product or service, marketers are usually wary of making such disclosures.

Most if not all affirmative disclosure records should be posted online on the agency's website.

Types of Affirmative Disclosures

The most common type of affirmative disclosure is seen in cigarette ads. The government has mandated that the warning “Cigarette Smoking is Injurious to Health” must be included on promotional ads and packaging.

Another type of affirmative disclosure is “terms and conditions apply," which is commonly heard in promotional offers. Regulations also require manufacturers of food products to spell out all information regarding allergenic ingredients such as eggs, peanuts, etc.

For products that claim better or timed results over their competitors, information regarding the testing process must be included. For example, if a skin product claims that users will experience benefits within five days, it must include the details of its test results.

Understanding 5 U.S.C. 552(a)(1)

Under 5 U.S.C. 552(a)(1), all federal agencies are required to publish the following kinds of information and records in the federal register:

  • A description of the agency's central and field organization, and the methods and places the public make contact to get information, make requests, or obtain decisions.
  • A statement explaining how agency's functions are determined and channeled, including the requirements and nature of informal and formal procedures available.
  • The description of all of the agency's available forms, where the forms can be obtained, instructions regarding the contents and scope of all examinations, reports or papers, and its rules of procedure.
  • Interpretations of general applicability, the substantive rules regarding such applicability, and statements on general policy that has been formulated and adopted,
  • All repeals, revisions or amendments to any of the above.

The provision also states that:

  • Individuals who do not have timely and proper notification of the agency's terms cannot be adversely affected by or resort to matters that were not published in the Federal Register.

However, if the matter is made available to individuals affected, it is considered to be published in the Federal Register when it is incorporated by reference with the approval of Director of Federal Register.

Describing an agency's central office will:

  • State the address and whereabouts of the national headquarters.
  • Include a summary of all the departments within the agency's central office.
  • State the types of activities undertaken by the aforementioned departments.

Describing an agency's field organization means you must outline its organizational hierarchy. Usually, key regional centers are identified, together with their addresses. An outline of the key personnel's chain of command may be included.

If there are other places where the public can seek relevant information, they should also be identified.

The FOIA's provision of proactive disclosure imposes the obligation of affirmative disclosure on agencies and requires them not only to maintain, but continuously update the records of the categories specified within subsection (a)(2) of the FOIA.

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