On March 12, 2013, the Federal Trade Commission (“FTC”) updated its online advertising guidelines (“.com Disclosures”). The update is intended to provide guidance to digital advertisers delivering ads to desktop computers, laptops, net books and mobile devices, in order to help them comply with consumer protection laws regarding deceptive and unfair business practices.
The main theme of the update relates to clarity and conspicuousness. The FTC listed several factors that should be used in determining whether a disclosure is clear and conspicuous. These include proximity and placement, prominence, other distracting factors in the ads, repetition, multimedia messages and campaigns, and understandable language.
The FTC suggested disclosures be as close as possible to the claims to which they relate. Disclosures and claims should appear on the same screen, if possible, and suggestive text or visual cues should be used otherwise to encourage scrolling that leads to the disclosure. Any hyperlinks should be obvious, well-labeled and easy to access.
In light of the guidance, advertisers should ensure their disclosures will appear clearly and conspicuously on all platforms and devices that may be used to view the ad. If an ad would be deceptive or unfair without a disclosure, and the disclosure cannot be made clearly and conspicuously on a particular platform or device, that platform or device should not be used for the ad.
The FTC can bring an enforcement action against an advertiser for deceptive or unfair business practices in violation of the FTC Act. The dot com Disclosures are not intended as a regulation or rule, but rather as guidance to digital advertisers regarding how the FTC interprets the laws it administers.