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Are mandatory disclaimers beneficial?

In 2002, U.S. Supreme Court Justices Thomas and Ginsburg issued a dissenting opinion when the Court decided not to hear a mandatory disclaimer case (Borgner et al. v. Florida Board of Dentistry et al. 2002). The dissenting Justices stated, “If the disclaimer creates confusion, rather than eliminating it, the only possible constitutional justification for this speech regulation is defeated.”

Kesten Green and I served as expert witnesses for a follow-on to the Borgner case. We were asked to present evidence relevant to the issue raised by Justices Thomas and Ginsburg. In contrast to disclaimers that sellers chose to provide, we found no evidence that consumers benefit from government-mandated disclaimers in advertising. Experiments and common experience show that admonishments to change or avoid behaviors often have effects opposite to those intended. We found 18 experimental studies that provided evidence relevant to mandatory disclaimers. Mandated messages increased confusion in all, and were ineffective or harmful in the 15 studies that examined perceptions, attitudes, or decisions. We also conducted an experiment on the effects of the government-mandated disclaimer that was the subject of the Florida case. Two advertisements for dentists offering implant dentistry were shown to 317 Floridians. One advertiser had implant dentistry credentials. Floridians exposed to the disclaimer, which related to the implant dentistry credentials, more often recommended the advertiser who lacked credentials. Women and less-educated people were particularly prone to this error. In addition, they drew false and damaging inferences about the credentialed dentist. Our findings were enough to convince the judge in the Circuit Court in Florida (Ducoin v. Viamonte Ros, 2009). This led to ",” which is published in in the latest issue of the Journal of Public Policy & Marketing, along with commentaries and our reply.

-J. Scott Armstrong
Wharton School
JMHH 747
U. of Pennsylvania, Phila., PA 19104
Home Phone 610-622-6480
armstrong@wharton.upenn.edu


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