False Ad Suit Shows Need for Clear, Conspicuous Disclosure

Advertisers often seek to clarify claims and offers using disclosures or disclaimers, e.g., asterisked text at the bottom of an ad. But advertising disclosure practice is not the Wild West.

For example, long-standing Federal Trade Commission guidance implores advertisers to ensure that any disclosures are clear and conspicuous to consumers.[1] And even clear and conspicuous disclosures should not contradict the main claim language.[2]

What matters is the net impression of the ad, i.e., whether the claims consumers take from the ad are truthful and substantiated.[3]

On Jan. 6, the U.S. Court of Appeals for the Eleventh Circuit emphatically reiterated these principles in a published decision in FTC v. Corpay Inc.[4] The case centered around the company's advertising regarding its fuel cards, i.e., limited-use credit cards for fuel purchases designed for businesses that use vehicles. The ads promised cost savings and other benefits.

The Eleventh Circuit found that Corpay's advertising claims were "all hat and no cowboy," including because "what the ad promised to give, the disclaimer took away much of."[5]

Specifically, the company allegedly failed to adequately inform customers of material limitations on offers or used disclosures that contradicted the offers, failed to disclose hidden fees, and unfairly charged customers late fees for timely payments.

Corpay made promises to customers in "prominent, central text" in ads, only to negate or significantly decrease any promised benefits through asterisked "tiny-print" disclosures.[6] In what the court termed a "fine-print reversal," central claims in some ads promised that customers would save significant money by using Corpay's credit cards for fuel purchases, e.g., "Save 10¢ per gallon on diesel fuel," but fine-print disclosures contradicted and narrowed the promised savings.

For example, small, asterisked disclosures in the footer of the ads excluded discounts from the same major retailers that were named in the body of the ads.[7] The disclosures were not only "too small to suggest that consumers actually read them," but they also "contained vague, confusing, and arguably contradictory terms."[8] The disclosures were thus legally insufficient.

Like the inadequate advertising disclosures, the court also found that Corpay's terms and conditions failed to inform customers of hidden fees. The terms did not disclose certain unexpected fees to customers. And even with respect to fees that were disclosed in the terms, such disclosure was inadequate because the terms were "largely inaccessible to customers," "difficult to read" and contained "many provisions, in tiny, fine-print text."[9]

Finally, Corpay charged customers $213 million in late fees for timely payments, despite evidence suggesting that their failure to correct the problem was intentional.[10]

The Eleventh Circuit affirmed the grant of summary judgment against the corporate defendant Corpay on all five counts of the FTC's complaint, and against the individual defendant — Corpay CEO Ronald Clarke — on four counts.

Notably, the court upheld the scope of the permanent injunction entered below, holding that the U.S. District Court for the Northern District of Georgia "could reasonably conclude given Corpay's rampant history of illegal acts, that the company needed constraints beyond the legal minimum to ensure future compliance."[11]

Specifically, the injunction included express informed consent provisions, which, among other things, prohibited fee disclosures from being behind a hyperlink, required disclosures to be unavoidable and called for a separate assent for each charged fee.[12]

The court reasoned that the latter requirement would ensure that a company would not "intentionally bury fee disclosures in a mountain of confusing text with only one required consent."[13] In short, the lower court's attempt to "fence in" Corpay with a strong injunction was warranted on this record.

The lessons from this case are clear and conspicuous:

• Advertisers should follow the FTC's "four P's" of clear and conspicuous disclosures: prominence, presentation, placement and proximity.[14]
• Disclosures may be ineffective for legal purposes if they are not easy to see, read and understand.
• Disclosures should clarify — not contradict or bury — material terms of the claim or offer.
• Advertisers should not rely on contradictory disclosures to cure false or misleading advertising claims.
• Material terms and limitations should not be hidden in mice-type disclosures or inaccessible terms and conditions documents.
• Fees should be prominently disclosed in advance to customers, rather than buried, hidden or disclosed after the fact.
• Individuals may be liable for corporate violations of the FTC Act where they have some knowledge of the unlawful acts and either participated directly in the acts or had authority to control them.

In practice, some common disclosure pitfalls to avoid include the following:

• Not including all material terms and conditions in the disclosure;
• Leaving a disclosure on screen for too short a period of time for consumers to read and understand it;
• Using too small a font size for consumers to read and understand it, particularly for ads that may be read on phones or other smaller screens;
• Using too light a color, or otherwise too similar to the background, for consumers to read and understand it;
• Only revealing material terms behind an inconspicuous hyperlink;
• Including disclosures in social media that appear below a "see more" or similar button;
• Displaying the disclosure at a different time from the claim it modifies, e.g., using a disclosure at the end of a commercial when the claim is made at the beginning;
• Making only a textual disclosure when the claim is made by audio;
• Using a disclosure stating only that "conditions apply" without disclosing the material terms in the ad;
• Using terms of art, or undefined, vague or ambiguous terms that average customers will not understand; and
• Not disclosing fees, subscription enrollment and auto-renewals, and cancellation terms prior to purchase, but rather only after the fact.

Advertising disclosures are not always problematic. They can be perfectly lawful, and even legally necessary, in some cases. Advertisers should follow the long-standing guidance from the FTC and courts to craft proper disclosures.

Much of that guidance comes down to a common-sense question: Will the relevant consumers easily see the disclosure and understand the material terms and limitations of the claim or offer? If you can answer yes to that question, you are on the right track toward a disclosure that mitigates rather than aggravates legal risk.

Reprinted with permission from Law360.

[1] See https://www.ftc.gov/news-events/news/speeches/myths-half-truths-aboutdeceptive-advertising.

[2] Id.

[3] See https://www.ftc.gov/business-guidance/resources/com-disclosures-how-makeeffective-disclosures-digital-advertising.

[4] No. 23-12539, __ F.4th ___, 2026 WL 35708 (11th Cir. 2026).

[5] Id. at *1, 3.

[6] Id. at *3.

[7] Id.

[8] Id. at *16.

[9] Id. at 6.

[10] Id at 9.

[11] Id. at 28.

[12] Id.

[13] Id.

[14] See https://www.ftc.gov/business-guidance/blog/2014/09/full-disclosure.