We’ve written often about the Federal Trade Commission’s guidance and enforcement activity when it comes to how businesses make use of online communications, and particularly what claims can be made and what disclosures must occur. Now the FTC has issued a guidance document addressing special disclosure issues arising from the use of social media and mobile devices with smaller screens, with an appendix of helpful illustrative graphics.4 While many of the broad principles are familiar, the Commission provides some new teaching on how they apply in the mobile/social media context. Here are some key take-aways.
Businesses must take into account the devices and platforms by which consumers will receive their messages. Where a disclosure or qualification is needed, businesses will have to consider whether it will be clear and conspicuous in all media and devices. If you’ve ever tried to zoom in on a corner of a page on a mobile device, you’ll understand why the FTC worries that a disclaimer which might be in adequate proximity on a printed page or when viewed on a computer screen may go unobserved on a handheld device.
As in other media, the tests are fact specific. Distracting colors, sounds or other features may undermine the adequacy of the disclosure. A disclosure otherwise revealed by a “mouse-over” may not work on mobile devices lacking a hovering cursor. Adobe Flash Player won’t display on all mobile devices.
The FTC also says it’s a good idea to display disclosures “just in time” — for example, at the point where a consumer is about to “add to shopping cart.” But if the disclosure appears only there, and consumers can go to a brick-and-mortar store to buy the item, then the disclosure needs to be elsewhere, too. Multiple disclosures also may be needed if there are multiple claims or multiple online paths to a purchase.
Critically, if the technology makes it impossible to make appropriate disclosures, then you can’t use the ad: “[I]f a particular platform does not provide an opportunity to make clear and conspicuous disclosure, then that platform should not be used to disseminate advertisements that require disclosures.” If a consumer can retransmit an ad without the disclosures, that may require changing how the disclosures are made. Twitter poses some special challenges, for example, in dealing with the FTC’s rules about endorsements and claims as to results. The report provides this hypothetical tweet as an example that discloses both that the tweeter is a paid endorser and that her weight loss result is not typical: “Ad: Shooting movie beach scene. Had to lose some 30lbs in 6 wks. Thanks Fat-Away Pills for making it easy. Typical loss: 1lb/wk.” Putting the disclosures in separate tweets, or including a hashtag that may be cryptic (#spon) won’t do the job.
The document is staff guidance, so it doesn’t create a safe harbor, but it was approved by the FTC's voting members. Prudence says treat it as words to the wise to avoid problems.