In today’s digital world, consumers can make purchases at anytime and from anywhere. As marketers seek to reach out to consumers in the online marketplace, extra care must be taken to avoid potentially deceptive claims in advertisements.

The Federal Trade Commission ("FTC") recently issued revised guidance on what businesses should consider when developing advertisements for online media. ".com Disclosures: How to Make Effective Disclosures in Digital Advertising," released in March 2013 (".com Disclosures Guide"), updates the FTC’s 2000 version of the guidance.

The .com Disclosures Guide has been updated to account for the increased use of mobile devices, which the FTC points out "present additional issues because a disclosure that would appear on the same screen of a standard desktop computer might, instead, require significant vertical and horizontal scrolling on a mobile screen." The FTC advises marketers that disclosures need to be clear and conspicuous – no matter what kind of device (i.e., computer, smartphone, tablet, etc…) or platform (i.e., website, banner ad, tweet, etc…) the advertisement appears on:

If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violative of a[n] [FTC] rule, and if it is not possible to make the disclosure clear and conspicuous, then either the claim should be modified so the disclosure is not necessary or the ad should not be disseminated. Moreover, if a particular platform does not provide an opportunity to make clear and conspicuous disclosures, it should not be used to disseminate advertisements that require such disclosures.

In the 2000 version of the .com Disclosures Guide, the FTC focused on six (6) factors that marketers could use to evaluate whether a disclosure was clear and conspicuous: 1) the placement of the disclosure and its proximity to the claim it qualifies; 2) the prominence of the disclosure; 3) whether items in other parts of the ad distract attention from the disclosure; 4) whether the ad is so lengthy that the disclosure needs to be repeated; 5) whether disclosures in audio messages are presented in adequate volume and cadence and visual disclosures appear for a sufficient duration; and 6) whether the language of the disclosure is understandable to the intended audience. While reiterating and expanding on the importance of these six factors, the revised .com Disclosures Guide provides an additional factor for marketers to evaluate: whether the disclosure is "unavoidable."

Addressing changes in the marketplace, the revised .com Disclosures Guide provides both additional guidance and insight into the FTC’s current views on marketing claims made online. Based upon the revisions, companies should consider the following when evaluating whether a disclosure is clear and conspicuous.

Proximity

  • A disclosure will be more effective if it is viewed by the consumer on the same screen as the triggering claim. When it is not possible to put the disclosure near the claim it is qualifying, the disclosure should be "unavoidable," meaning the consumer cannot proceed further with the transaction without scrolling through the disclosure.
  • Because smartphones and tablets have smaller screens, horizontal, as well as vertical, scrolling might be necessary. Placing a disclosure in a different column of a webpage from the triggering claim could make it unlikely that a consumer, who has zoomed in while using a smartphone or tablet, will scroll to the left or right to read the disclosure.

Use of Hyperlink Disclosures

  • The use of hyperlinks that simply say "disclaimer," "more information," "details," "terms and conditions," or "fine print" are likely to be considered "inadequate" by the FTC. When it comes to labeling hyperlinks, "more specificity will generally be better."
  • Consider whether and how the hyperlinks will work on the various programs and devices that could be used to view the advertisement.

Use of Pop-Up Disclosures

  • A marketer "should not disclose necessary information through the use of pop-ups that could be prevented from appearing by pop-up blocking software."

Use of Space-Constrained Ads  (i.e., Banner Ads and Tweets)

  • Be careful about using a banner ad or tweet if the marketed product can be purchased in a brick and mortar store and there are material limitations on the promotion. Specifically, it may not be sufficient to include the disclosure on a separate linked website if it is unlikely that a consumer will visit that website before going to a retail store to purchase the product
  • Use disclosures in each and every ad that would require a disclosure if the ad were viewed in isolation; do not assume that consumers will see and associate multiple space-constrained advertisements.

  • Before using a short-form disclosure, consider whether the consumer will understand its meaning. The FTC indicates that using "Ad:" at the beginning of a tweet "should inform consumers that the message is an advertisement." Similarly, using the word "sponsored" will "likely inform[] consumers that the message was sponsored by an advertiser." However, other abbreviations (such as "spon") might not be adequate.

  • Employ best practices to ensure that disclosures will not be deleted from space-constrained ads if and when they are republished. This can be accomplished by either placing the disclosure at the beginning of the message or, if placed at the end, ensuring that there is enough free space so that the disclosure will not be lost.

Prominence

  • Design the website so that any necessary disclosures are clear and conspicuous – regardless of the device on which it is being viewed.

Other Considerations

  • Pay attention to, and study, whether consumers are not noticing or comprehending a necessary disclosure and, if not, improve it.
  • Take into consideration empirical research about where consumers do and do not look on a screen.