What has changed?
The general requirements for disclosures have not changed; however, the FTC has offered clearer guidance for the inclusion of disclosures in digital marketing channels, in particular social and mobile channels. The guide applies to advertisements that require a disclosure to avoid being perceived as deceptive or unfair, or otherwise violate a Commission rule, and when disclosures cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used.
What are the standouts for social and mobile marketers?
For marketers promoting or marketing in social and mobile channels, the changes are more pronounced.
The FTC also now requires that marketers take into account responsive design for various mobile and alternate device resolutions and limitations (i.e. mouse-overs that doesn’t work in mobile or touchscreen devices). Preferably, design advertisements so that “scrolling” is not necessary in order to find a disclosure.
The new guidance points out that space-constrained ads, such as on some social media platforms, must still provide disclosures necessary to prevent an ad from being deceptive, and it advises marketers to avoid conveying such disclosures through pop-ups, because they are often blocked.
While the document provides guidance on what is meant by ‘clear and conspicuous online disclosures’, it isn’t intended to provide a safe harbor from potential liability and nor does it address disclosures that may be required to comply with local laws (such as state sweepstake requirements), or other federal laws or regulations (for example, regulations issued by the Consumer Financial Protection Bureau or the Food and Drug Administration).
When it comes to online ads, the basic principles of advertising law apply:
Do read it for yourself though – this isn’t exhaustive!
Advertisers must be sure that all express and implied claims of an ad are truthful and substantiated. For example:
Whether a disclosure is “clear and conspicuous” is measured by an ad’s performance: how consumers actually perceive and understand the disclosure within the context of the entire ad, so the consumer takes truthful and substantiated information. A disclosure not seen or not understood may lead to a misleading impression.
Since in general, consumers don’t read an entire website or online screen (or every word on a printed page), disclosures should be placed as close as possible to the claim they qualify. Scrolling increases the risk that consumers will miss a disclosure. In addition, it is important for advertisers to draw attention to the disclosure, make it unavoidable, and not distract attention away from it by use of moving graphics elsewhere, for example.
Disclosures, according to the guidelines, are evaluated on:
Advertisers should be aware of the following:
As always, it’s easier to understand when you can see examples. In a follow-up to this article, I’ll be looking at some specific examples, and highlight what is clear and conspicuous – and what’s not.
Brands and their agencies need to review these guidelines, understand them and be assured that compliance forms part of their approval processes.
It’s also worth mentioning that, under the FTC’s Guide for Testimonials and Endorsements, reasonable monitoring of disclosures is required: that is to say, endorsers should be advised of their responsibilities and their online behavior monitored by the advertiser to make sure it is in compliance.
By: Tia Fisher
My thanks to my colleague César Struve, who co-wrote and researched this article.
This blog expresses the views of the authors only. It is not legal advice and is not intended to be relied upon. If you have a legal concern about any of the issues covered in this blog, we recommend you seek independent legal advice.