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.
In evaluating proximity, it is best when a disclosure is viewed on the same screen as the claim that requires it. The limited screen size of mobile devices may cause consumers to scroll in order to reach a disclosure, which may be an issue. In this instance, the FTC recommends that advertisers use text or visual cues that encourage scrolling (and to avoid using formats that inhibit scrolling). Hyperlinking to disclosures is discouraged in many situations. Disclosures that are an integral part of a claim—such as basic cost information and health and safety disclosures—should not be hyperlinked. However, to use the FTC’s example, a disclosure about “additional fees are too complex to describe adjacent to [a] price claim,” a hyperlink that appears adjacent to the claim may be appropriate.
With regard to prominence, the size, color, and graphics of the disclosure should be comparable to the claim and other text and images on the screen. In the mobile age, advertisers should take into consideration the type of devices consumers use to access the advertisement. For example, on a standard website a disclosure may be deemed “clear and conspicuous” but if accessed on a mobile device where the text of the disclosure cannot be enlarged, it would not be deemed “conspicuous.”
In the online advertising age, claims are made in audio, written, and visual formats. The disclosures for each should be in the same format as the claim: “for audio claims, use audio disclosures…for written claims, use written disclosures…display visual disclosures for a sufficient duration.”
This new guidance document is helpful for advertisers using mobile platforms. One likely outcome of these new guidelines is that it will be more costly for advertisers, who in addition to designing clear and conspicuous disclosures for standard websites will now have to design specifically for mobile platforms as well. I recommend checking out one of my previous articles here on Ad Nauseam that pertains to the FTC’s Guidelines on Mobile Privacy Disclosures, a closely related topic. For more information and to view the “Dot Com Disclosures,” click the Source link below.
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