On March 12, 2013, the Federal Trade Commission (FTC) released new guidance for online advertisers, providing specific tips and examples of how to make disclosures clear and conspicuous, and, therefore, not deceptive in the context of emerging technologies, space-constrained screens, and social media platforms.
The guidelines—titled “.com Disclosures: How to Make Effective Disclosures in Digital Advertising”—update prior guidance known as “Dot Com Disclosures,” which was released in 2000. The updated guidelines emphasize that consumer protection laws apply to commercial activities across all mediums, including on computers, mobile devices, and tablets.
Key principles outlined in the guidance include:
- The disclosure must be clear and conspicuous regardless of the device or platform. If an ad would be unfair, deceptive, or otherwise unlawful without a disclosure, but the disclosure cannot be made clearly and conspicuously on a particular device or platform, then the ad should not run at all on that device or platform.
- Proximity and placement. In evaluating whether a disclosure is likely to be clear and conspicuous, advertisers should consider the placement of the disclosure in the ad and its proximity to the relevant claim. Whereas the 2000 guidance defined “proximity” to mean “near, and when possible, on the same screen,” the updated guidance advises that disclosures should be “as close as possible” to the relevant claim. It also states a preference that advertisements be designed so that “scrolling” is not necessary to see the disclosure. In self-evaluating their ads, advertisers should adopt the perspective of a “reasonable consumer.”
- Prominence. It is the advertiser’s responsibility to draw attention to the required disclosures. According to the updated guidelines, size matters, colors count, and graphics help. Repetition—but not too much repetition so as to clutter the ad—may make a consumer more likely to notice and understand a disclosure.
- Hyperlinks. The updated guidance suggests that advertisers label hyperlinks as specifically as possible. Like the prior guidelines, the updated guidelines stress that disclosures that are an integral part of a claim —such as general cost information or certain health and safety information, not be communicated through a hyperlink.
- Pop-ups and technological limitations. Pop-up disclosures should be avoided, because these may be blocked by certain technologies or devices. The fact that some browsers and devices may not optimally support certain techniques for displaying disclosures also should be considered. (For example, it should be taken into account that some mobile devices currently will not support Adobe Flash Player).
- Multimedia campaigns. Disclosures should mirror the medium in which a claim is made. Specifically, audio claims should contain audio disclosures at a volume and cadence sufficient for a reasonable consumer to hear and understand. Written claims should contain written disclosures, not solely in an audio or video clip. Video disclosures should be of a sufficient duration. Additionally, all disclosures should be in language that it is simple, straightforward, and understandable to the reasonable consumer.
The FTC staff report makes clear that these guidelines provide only suggestions for practices that may increase the likelihood that a disclosure is clear and conspicuous; they are not intended to provide a safe harbor from potential liability.