In March, the Federal Trade Commission (FTC) issued a guidance document for online advertisers entitled “.Com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the Guidance). FTC had released earlier guidance on Internet advertising in 2000, but this new Guidance addresses smart phones and social media marketing.
The Guidance emphasizes that if a disclosure is necessary to prevent a claim on an online advertisement from being deceptive or unfair, it must be clear and conspicuous on all devices and platforms that display the ad.
One difference between the Guidance and the prior guidance document are their recommendations for the location of these disclosures. While the 2000 guidance states that advertisers should consider the disclosure’s placement and proximity to the relevant ad claim, (i.e., “near, and when possible, on the same screen,”), the new Guidance suggests disclosures should be “as close as possible” to the relevant claim, leaving room for disclosures on other screens. However, the Guidance delineates the placement of these disclosures:
The Guidance states that disclosures should not be placed where consumers would have to scroll in order to view them, unless it is not feasible. If so, advertisers should use explicit text (e.g., “see below for information on fees”) or visual signals to encourage consumers to scroll to the disclosure. Further, consumers should not be able to continue onto another page without viewing the disclosure.
The Guidance advises avoiding hyperlinks for disclosures regarding product cost or particular health and safety issues. If hyperlinks must be used, the Guidance suggests labeling them precisely (c.f., “more information”), and warns advertisers to take into account how hyperlinks will actually function on devices.
For certain ads where space is constrained, shorter disclosures may be sufficient, according to the Guidance. For instance, in a Twitter ad, “Sponsored” before the tweet would suffice. Disclosures in these ads should be included in every tweet with the ad.
The Guidance also cautions against disclosures requiring a pop-up, because they are often blocked. Similarly, advertisers should not use disclosures requiring Adobe Flash Player because the program is not supported on many devices and platforms used to view the ad.
Advertisers in the pharmaceutical, medical device, cosmetic, and food industry should become familiar with the new Guidance, particularly because of social media and mobile ad’s prevalence in marketing practices. Though the Guidance only provides FTC’s views on these and is non-binding, it provides a detailed explanation of appropriate advertisements.