Disclaimers in consumer promotions: How to avoid a fine from the regulator
Poland’s Office of Competition and Consumer Protection often accuses businesses of using misleading advertising content, violating consumers’ collective interests. This can attract a fines of up to 10% of the company’s annual turnover. One reason for fines can be improper wording or appearance of disclaimers.
A disclaimer is generally defined as a statement of limited liability for a product, advertisement or service. But in the context of promotional campaigns, disclaimers can play a broader role. They may clarify the rules of the campaign and draw consumers’ attention to key aspects of the offer. This is intended to provide customers with additional information to help them make an informed decision on whether to take advantage of the offer.
The way companies convey key information in advertising materials can be challenged by the president of the Office of Competition and Consumer Protection (UOKiK), recognising that advertising messages can exert a great influence over consumers’ interest in a promotional campaign. In this regard, the decision-making practice of the regulator is extensive and constantly evolving. Every year, the authority accuses businesses of violating the collective interests of consumers by misleading consumers through advertising content. Companies may be fined on this account, and the maximum can be 10% of their annual turnover (per violation, and in case of multiple violations even higher). In practice the fines are usually lower than this figure, but can still be severe.
Ads must be real
The regulator takes the position that every element of an ad campaign, including graphic and verbal components, is subject to detailed analysis in terms of its impact on the recipient, i.e. the potential consumer. If the authority finds that the violation of consumer rights was intentional, it can raise the fine.
An example of this interpretation is decision no. RBG-3/2023, issued against the Biedronka grocery chain, where UOKiK imposed its highest fine for violation of consumer rights in 2023—more than PLN 160 million (the decision is not yet final). Questioning the rules of the campaign called “Biedronka’s anti-inflation shield,” the authority pointed out: “The content of any advertisement should be reliable and present truthful information. This follows from the consumer’s right to truthful, reliable and complete information about a good or service. This knowledge is used by prudent consumers, who cannot be required to assume that the ad is false or has a hidden message…. While the content of an ad may always be composed synthetically, it is wrong to require any consumer, including a prudent one, to expect that abbreviated content is not true. Therefore, while being cautious and prudent, an average consumer has the right to believe that the ad is truthful and thus consistent with the actual state of affairs.”
This reasoning may lead to the conclusion that a disclaimer should not serve as a tool to correct or even contradict information the consumer has encountered in another, more prominently exposed part of the same advertisement, such as the top-line ad slogan. Rather, the role of the disclaimer is to complement the message, and not to “fix” potentially misleading elements of the ad. The consumer should be able to assume that the wording of the ad (and all of its elements) is true.
Check the terms and conditions
In practice, disclaimers often require consumers to read the full terms and conditions of a promotion. This is a valid solution, since the advertising medium does not, as a rule, allow room to provide consumers with all detailed information about the promotion. A cross-reference to detailed terms and conditions can give the consumer a clue of where to get more information. But if the promotion involves a complex mechanism, UOKiK may find that a mere cross-reference to the terms and conditions is insufficient in a given case. It is similar in a situation when no part of the advertisement conveys information that is relevant from the perspective of a potential participant.
The regulator’s decision no. RLU 03/2018, from 2018, illustrates this issue. It concerned the Black Red White furniture store chain, which used the slogan: “FURNITURE AND ACCESSORIES without VAT.” The ad posters included a disclaimer stating: “‘Furniture and accessories cheaper by VAT’ is valid from 9 June to 19 June 2017. Offer valid in selected stores. Detailed terms and conditions of the promotion available at Black Red White stores. This information does not constitute an offer within the meaning of the Civil Code and is for informational purposes only.”
The terms and conditions to which the disclaimer referred contained product restrictions, i.e. certain types of goods were excluded from the VAT-free offer. But these limitations were not expressly mentioned in the marketing materials. Thus, a person reading the ad might have assumed that the discount equal to VAT applied to all products available in the stores that joined the promotion. In the regulator’s opinion, the information on product exclusions was relevant to the average consumer as a potential purchaser of the advertised goods and could influence their decision to visit the furniture showroom, select the goods they were interested in, and finalise their purchase. As the regulator pointed out: “For these marketing materials, in particular, the content of the ad should be suited to the medium where it is presented. The information required by law, relevant to the average consumer’s decision on whether to take advantage of the company’s offer, should be true, and presented in an unambiguous, understandable and highly visible manner. A reference to the details of the promotion contained in the terms and conditions cannot go to the core of the promotion, i.e. a product restriction, when such restriction is not directly stated in the advertising message. Because this information is crucial from the point of view of an average consumer making an informed decision on whether or not to take advantage of the company’s offer, this data should be distributed so that a consumer reading the advertisement would obtain information about the material terms of the offer from the very beginning.”
Exclusions in the fine print
Even if the disclaimer performs its proper explanatory or clarifying function (and does not instead contradict the main message), it is also important how it is presented to customers. Here, the size and colour of the font used, the length of the message, and the time consumers have to read it can all play a role. These elements have been repeatedly addressed by the president of UOKiK.
For example, in decision no. RBG-2/2024, issued in 2024 against the Biedronka chain in connection with its “magic of discounts” promotional campaign, the regulator found shortcomings in the way consumers were informed of the rules for the campaign.
Pursuant to the rules of the promotion, holders of the My Biedronka app or card were encouraged to purchase three products from the category of books and toys, and then they would receive back half of the amount spent on these products in the form of a voucher printed on their receipt. The voucher could be applied against future purchases. But the marketing materials had an asterisk, with smaller print indicating the limitations of the promotion, which was to be valid only for selected industrial items or textiles. In the decision rendered by the regulator, the chain undertook to award a new voucher worth PLN 150 to consumers who for any reason did not redeem the vouchers they received in the dubious campaign.
This decision shows that the ad materials used by the retailer displayed information exclusively about the benefit from the promotion, i.e. a voucher for 50% back on the value of toys and books when purchasing at least three products with a card or app. This information was indicated in a large font and took up about three-fourths of the area of the ad. On the other hand, information on the complicated terms and conditions of the promotion, including product exclusions, was given in a tiny font, which, the authority found, might make the notation of material terms and conditions of the promotion illegible. Moreover, in the regulator’s opinion, because the information referring them to the terms and conditions could be illegible, consumers might not have been aware that such terms and conditions existed and applied to this campaign.
UOKiK gives general guidance…
In decision no. RBG-2/2024, discussed above, the president of UOKiK also shared valuable guidance for businesses planning promotional campaigns: “It is not appropriate or well-founded to create promotional offers for consumers with many exclusions or other restrictions as compared to the main message of the ad (prominently displayed) and then communicate them in the advertising materials in a very difficult and poorly legible manner, detracting from the readability and clarity of the message.”
The regulator continued: “It is unacceptable for promotional materials to highlight only the advantages of a promotion, using large and eye-catching terms (taking into account the colour and font size), when the rules introduced by the organiser greatly impair these benefits, and the advertising message is therefore not clear and legible for the recipient.”
Another example where the consumer protection authority questioned the size and legibility of the disclaimer in an advertisement is decision no. DOZIK 20/2023, issued in 2023 against cell phone operator T-Mobile. The headline in the campaign there was “1200 GB free for a year.” But the disclaimer stated that under the GO! tariff in question, the user would receive a 1200 GB bonus under the named offer, divided into 12 packets of 100 GB each. They would receive the first 100 GB packet upon activation of the promotion on the app, provided they had one of two named offers active at that time. Then they would receive the next 11 packets on the renewal date of the selected offer. The bonus could be used for 365 days, starting from activation of the first packet. For details, users were sent to the terms and conditions of the promotional offers in question for T-Mobile prepaid users on the GO! tariff and at www.t-mobile.pl.
The regulator found that ads placed in urban spaces (e.g. on billboards) suggested that the data package was free. In reality, instead of the promised package of 1,200 GB, the consumer received 100 GB every month, but only if they topped up their account for a minimum of PLN 35 per month. This discrepancy resulted in imposition of a fine of over PLN 25 million.
The regulator had reservations not only about the veracity of the ad slogan itself, but also about the legibility of the disclaimer, where the detailed terms and conditions of the promotion were placed at the bottom of the ad space and displayed in a font only a fraction of the size of the main slogan. This decision demonstrates the importance of font size in large-format advertising, where the text must be visible from a long distance. According to the authority, the disclaimer was illegible, published in a small font, making it invisible to consumers farther away from the ad.
…but not specific guidelines
However, the president of UOKiK does not give specific guidelines, such as the ratio of the font size of the main slogan to the disclaimer, or which font to use. Therefore, it should be assumed that this determination will depend on the circumstances of each case. Thus each case requires a separate analysis to consider how recipients will be impacted.
Agnieszka Jelska, attorney-at-law, Competition & Consumer Protection practice, Wardyński & Partners
