Advertising Law Blog

By William MacDonald*

On March 12, 2013 the Federal Trade Commission released an update of its guidance known as Dot Com Disclosures, which was first released in 2000. The new guidance, .com Disclosures: How to Make Effective Disclosures in Digital Advertising (the "Guidance"), is intended to address the current online and mobile advertising environment.

The Guidance continues to emphasize that consumer protection laws apply equally to marketers across all mediums, whether delivered on a desktop computer, a mobile device, or more traditional media such as television, radio, or print. Specifically, although the Guidance counsels advertisers to incorporate relevant limitations and qualifying information into the underlying claim itself, if a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous. According to the Guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view an advertisement. Additionally, the Guidance explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate an FTC rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used. According to the Guidance, disclosures should be "as close as possible" to the relevant claim, a stricter standard than the original Dot Com Disclosures.

The Guidance continues to caution advertisers against using hyperlinks for disclosures that involve product cost or certain health and safety issues. The Guidance also calls for labeling hyperlinks as specifically as possible. Further, the Guidance cautions advertisers to consider how hyperlinks will function on various programs and devices.

Finally, the Guidance points out that advertisers using space-constrained advertisements, such as on some social media platforms, must still provide disclosures necessary to prevent an advertisement from being deceptive, and it advises marketers to avoid conveying such disclosures through pop-ups, because they are often blocked.

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*Mr. MacDonald was formerly a lawyer with Olshan's IP Department.