On March 12, the Federal Trade Commission released its guidance for mobile and other online advertisers that explains how to make disclosures clear and conspicuous to avoid deception. The FTC updated its 2000 guidance and now takes into account the expanding use of smartphones with small screens and the rise of social media marketing. The guidance also contains mock ads that illustrate the updated principles.
The guidance emphasizes that consumer protection laws apply equally to marketers across all mediums, whether delivered on a desktop computer, a mobile device, or more traditional media such as television, radio, or print.
The key principle is if a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous. Under the new guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view the ad. Importantly, the new guidance also explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate a Commission rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used.
Simply put, there are 3 major takeaways:
1. Placement and Proximity: The 2000 guidance stated that to help ensure clear and conspicuous disclosures, advertisers should consider:
- The disclosure’s placement and proximity to the relevant ad claim
- Its prominence
- Whether audio disclosures are loud enough to be heard
- Whether visual disclosures appear for long enough to be noticed
Although the 2000 guidelines defined proximity as “near, and when possible, on the same screen,” and stated that advertisers should “draw attention to” disclosures, the new guidance says disclosures should be “as close as possible” to the relevant claim.
2. Hyperlinks: Like the original guidance, the updated Dot Com Disclosures calls on advertisers to avoid using hyperlinks for disclosures that involve product cost or certain health and safety issues. The new guidelines also call for labeling hyperlinks as specifically as possible, and they caution advertisers to consider how their hyperlinks will function on various programs and devices.
3. Pop-ups: The new guidance points out that advertisers using space-constrained ads, such as on some social media platforms, must still provide disclosures necessary to prevent an ad from being deceptive, and it advises marketers to avoid conveying such disclosures through pop-ups, because they are often blocked.
Advertisers should review the new guidance carefully as well as the mock ads included in the guidance. Although guidance doesn’t have the “force of law” like a trade regulation, non-compliance with the guidance could easily constitute a deceptive act or practice that violates Section 5 of the FTC Act.