Saturday, February 16, 2008

The Not-So-Fine Print


If you watch commercial TV (that is to say, TV with commercials), you’ve no doubt been struck by the proliferation of ads for various prescription medicines. Medicines that you generally can’t buy directly, of course - but you CAN “…ask your doctor or pharmacist about how they might work for you.”

Setting aside my personal disgust at just how many (and how explicit) Via.gra ads are shown (and shown so early in the evening), I’m always struck by the length and content of the disclosures that accompany such promotions. Frankly, IMHO, by the time they’re done reeling off the potential side effects, it’s a wonder anyone actually makes an inquiry about taking them. Truly, the “cure” often sounds worse than the disease.

Disclaimers are also increasingly popular in our industry. There’s the disclaimer that plan fiduciaries are asked to sign if they choose not to follow the counsel of their financial adviser, disclaimers that purport to limit the liability of providers, and exactly why do you suppose those admonitions that past performance isn’t indicative of future results come so intriguingly positioned vis-à-vis the trumpeting of those results? Just ahead of the press toward automatic enrollment, some were requiring that participants physically opt out by acknowledging that they realized the consequences of their decision. Not that they necessarily did, mind you. One would expect that if they did, they wouldn’t opt out, if for no other reason to get the “free money” associated with the company match.

No, like the litany of disclaimers on those pharmaceutical ads, the consequences of not saving for retirement are, for many, simply a reminder that some highly unlikely side effects could, but probably won’t, happen. Part of that, of course, lies in the inability to portray something so uniquely individualistic, and part of it, surely because the audience itself has no real idea what a secure retirement looks like, much less what it will be like to live through the alternative. But part of it also is our collective unwillingness to share that truth, or to do so only in the smaller sized text, the fine print of “disclaimers”.

I’m sure the pharmaceutical companies would just as soon not bother with their little disclaimers – ditto those consent forms that accompany the most modest medical procedure. Let’s face it, if any of us EVER thought those “possible” results were likely (including the folks shoving the forms in our face), we’d surely walk away.

Disclaimers, of course, are generally defensive mechanisms; written by lawyers, for lawyers – by the people who have spent time figuring out how all the things that can possibly go wrong to protect themselves against the impact on those who haven’t – or can’t. The drug company tells you that dire consequences are a possibility precisely because they don’t want you to later claim (in a court of law) that you weren’t told they were. They are NOT, however, generally designed to so fully and completely apprise you of the negatives that you hesitate. The “fine print”, in other words, is not designed in such a way as to gain your full attention.

Are your disclaimers any different? Are they truly designed to get people’s attention…or are they simply designed to cover your….assets?

- Nevin E. Adams, JD

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