Alert March 19, 2013

FTC Releases Guidance on Disclosures for Digital Advertising

The FTC issued new guidance, .com Disclosures: How to Make Effective Disclosures in Digital Advertising, to update its previous guidance published in 2000, Dot Com Disclosures, to address mobile and other online advertising. The updated guidance is designed to address the increased use of smartphones and the rise of social media marketing by explaining how to make disclosures clear and conspicuous to avoid deception and violating federal consumer protection laws. The FTC Act—which generally prohibits unfair or deceptive practices or acts—"broadly covers advertising claims, marketing and promotional activities and sales practices in general," according to the FTC. The updated guidance generally provides that advertisers should ensure disclosure is clear and conspicuous on all devices and platforms that consumers may use to view advertising. Key elements of the updated guidance include: (1) recommending the placement of required disclosures as close as possible to the triggering claim, (2) avoiding the necessity of scrolling by consumers to find the disclosure, (3) similar to the prior guidance, suggesting that advertisers avoid using hyperlinks for disclosures that involve product cost and (4) cautioning against providing necessary disclosures through pop-ups. The updated guidance also provides several examples for providing appropriate disclosures to assist advertisers.