Recently, the FTC updated its “Dot Com Disclosures” guidance document relating to online advertising, to account for social media and constrained screen space. The purpose of the update concerns the FTC’s “clear and conspicuous” online disclosures, and how they can effectively be made in the age of evolving technology. With regard to online advertisements, basic principles of advertising law apply: (1) advertising must be truthful and not misleading; (2) advertisers must have evidence to back up their claims, known as “substantiation;” and (3) advertisements cannot be unfair. However, as the FTC points out, the unique features of online advertising affect the way required disclosures are evaluated.
The “clear and conspicuous” disclosure requirement varies depending on the advertisement’s nature and the type of information that must be provided. Some of the considerations that the FTC provides in determining whether a disclosure meets the requirement are:
“the placement of the disclosure in the advertisement and its proximity to the claim it is qualifying; the prominence of the disclosure; whether the disclosure is unavoidable; the extent to which items in other parts of the advertisement might distract attention from the disclosure; whether the disclosure needs to be repeated several times in order to be effectively communicated, or because consumers may enter the site at different locations or travel through the site on paths that cause them to miss the disclosure; whether disclosures in audio messages are presented in an adequate volume and cadence and visual disclosures appear for a sufficient duration; and whether the language of the disclosure is understandable to the intended audience.”
While these considerations apply across the broad range of advertisements, the FTC recognizes the particular challenges of online advertising in evaluating whether a disclosure is “clear and conspicuous.” Below, I will present some of the FTC’s key points covered in the updated “Dot Com Disclosures” guidance document. Read more