The FTC recently released an update to its 2000 report, “Dot Com Disclosures” offering further guidance on effective disclosures for advertising in digital media.
The FTC instructed advertisers to adopt the perspective of a reasonable consumer, and should assume consumers do not read the entire website or screen, just as they don’t read every word on a printed page. Under the new guidance, the required disclosures need to be clear and conspicuous across all devices and platforms. The following is a highlight of some of the guidance provided in the comprehensive report.
First, the FTC suggested when making a claim, online advertisers should incorporate the relevant limitations and information into the underlying claim when possible, instead of requiring a separate disclosure qualifying the claim.
The FTC advised advertisers to place required disclosures in ads if a consumer can purchase the advertised product or service in a brick and mortar store or from online retailers other than the advertiser. The FTC instructed advertisers to not place the disclosures only at the e-commerce site linked to the ad in these instances because the consumer may view the ad and then decide to purchase the product or service at a brick and mortar store or a different e-commerce site; and, therefore, will not see disclosures the advertiser places in the advertiser’s own e-commerce site. Advertisers should also take into account the various devices and platforms consumers may be using to view the advertisement and should not ignore technical limitations of some browsers or devices (such as certain mobile devices do not support Adobe Flash Player).
Additionally, the new guidance made clear that “space-constrained ads” such as banner ads in social media and tweets are not exempt from the disclosure requirements. Some disclosures may be easily incorporated into the space-constrained ads (such as tweets beginning with the word “Ad:” or “Sponsored”) while more detailed disclosures may be hyperlinked. Hyperlinks to such disclosures should be clearly labeled to communicate the specific nature of the information and advertisers should use consistent hyperlink styles across websites and applications to increase the likelihood that consumer will identify these links.
The full report, with many useful examples, is available on the FTC website: http://www.ftc.gov/opa/2013/03/dotcom.shtm.
Additionally, Alston & Bird’s client advisory, with further details of the FTC report, is available at www.alston.com/advisories/ip-ftc-digital-advertisting-guidance