It has been ages in Internet time since the FTC provided advertising guidance in its “Dot Com Disclosures” release in 2000. Thirteen years later, cyber eons really, the FTC now has come up with new guidance in its “.com Disclosures: How to Make Effective Disclosures in Digital Advertising.”
This new guidance recognizes the exponentially increasing use of mobile devices and the consequences of their limited screen size, as well as the growing prevalence of social media advertising.
As in its first guidance, the FTC still makes plain that consumer protection laws apply to advertising across all media. This is true whether the advertising is provided via traditional outlets such as television, radio or print, as well via newer media such as on desktop computers or mobile devices.
Disclosures must be clear and conspicuous when needed to make sure that online advertising claims are not deceptive or unfair. As part of the new FTC guidance, this is true for all devices and platforms that consumers utilize to see advertisements. And if the provision of clear and conspicuous disclosures is not possible on a device or platform, such device or platform should not be used to push the particular advertisements.
The new guidance provides that disclosures should be as close as possible to the relevant advertising claims. And, just as under its original guidance, the FTC takes the position that advertisers should avoid using hyperlinks for disclosures relating to product cost or specific health and safety issues. In addition, the FTC is calling for the labeling of hyperlinks to be as specific as they can be, with an emphasis on advertisers thinking through how their links will operate on different programs and devices.
Even with respect to space-constrained advertisements, as on some social media platforms, advertisers still are to provide disclosures when needed to ensure that advertisements are not deceptive. And advertisers are advised not to make disclosures via pop-ups, as they often are blocked.
Plainly, advertisers should study the FTC’s guidance so as not to find themselves later potentially in the FTC’s crosshairs.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his profesisonal biography here. To receive a weekly email link to Mr. Sinrod’s columns, please send email him at firstname.lastname@example.org with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.