The Federal Trade Commission (“FTC”) has released its revised guidance on the principles of advertising disclosures in the online marketplace. Entitled “.com Disclosures,” the new guidance enhances the FTC’s earlier Dot Com Disclosures guide, published in May 2000, to address over a decade of technological changes in e-commerce, including the significant increase in the use of mobile and social media platforms. Although still presented as a guide for online advertising, the .com Disclosures guide serves as a valuable resource for determining the adequacy of online and mobile notices and disclosures generally.
The .com Disclosures guide follows the same format as its predecessor – first discussing the applicability of FTC law to online advertising, then identifying the elements of what makes a disclosure sufficiently “clear and conspicuous” as measured by the FTC’s standards for unfair or deceptive acts or practices. The .com Disclosures guide reiterates the importance of proximity and placement, prominence, avoiding distractions, repetition, multimedia messages considerations, and using understandable language. In fact, the substance of the FTC’s message is relatively unchanged since 2000. However, because the 2000 guide generally addressed the presentation of disclosures on web pages viewed on a computer screen, the FTC now incorporates additional recommendations with respect to disclosures presented on mobile devices and other emerging platforms that have altered the standards for clarity and conspicuousness.
- Disclosures should take into account the various devices and platforms that consumers may use to view the disclosures, and such disclosure should avoid misleading consumers when viewed on such device or platform;
- Where space is constrained (e.g., on a mobile device), a disclosure may, under certain circumstances, be provided on a separate page to which an advertisement links; and
- Disclosures should recognize and respond to technological limitations or unique characteristics of a communication method. As an example, the FTC noted that mouse-over links may not work on tablets or other mobile devices.
To emphasize the impact that mobile and social media platforms have on the presentation of disclosures, the FTC significantly revised the “mock ads” appendix to include shots of how advertisements and their corresponding disclosures may appear on mobile screens and social media posts (like Twitter).