FTC Reboots .com Disclosures: Four Key Points and One Possible Way to Bypass the Issue Altogether

We asked how the FTC’s 2000 staff guidance document Dot Com Disclosures was working for you, and you said it was due for some updating.  After hosting a workshop and receiving stacks of written feedback, the FTC has issued a revised version, renaming it .com Disclosures: How to Make Effective Disclosures in Digital Advertising.  You’ll want to read it in depth to see how it will affect your company, but the new title is a tip-off:  .com Disclosures focuses on the same consumer protection principles, but fast-forwards them to reflect changes in the digital marketplace.  Here it is, distilled down to four key points — and one suggestion for rethinking your approach to disclosures:

1.   The most important thing about the new .com Disclosures is what hasn’t changed.  Consumer protection laws still apply across the board to print, radio, TV, and online advertising.  Innovative digital promotions may grab the headlines, but advertisers shouldn’t lose sight of the old-school standards.  Like Don Draper’s grey flannel suit on “Mad Men,” Section 5 of the FTC Act is a timeless classic that supersedes the fashions of the day.  Regardless of how or where you market, well-established truth-in-advertising principles apply.

2.   The second important point is another old standard, but with a twist.  It’s the law – and it’s always been the law – that if the disclosure of information is necessary to prevent an online ad claim from being deceptive or unfair, it has to be clear and conspicuous.  So what’s new?  According to .com Disclosures circa 2013, advertisers should make sure their disclosures are clear and conspicuous on all devices and platforms that consumers may use to view their ads.  That means that if an ad would be deceptive or unfair (or would otherwise violate an FTC rule) without a disclosure — but the disclosure can’t be made clearly and conspicuously on a particular device or platform — then that ad shouldn’t run on that device or platform.

3.   Using mock ads as examples, the new guidance builds on some design tips highlighted in the earlier document.  Among other things, the FTC staff advised marketers in 2000 to consider the placement of disclosures and their proximity to the ad claims they explained or elaborated on.  The old guidelines defined “proximity” as “near, and when possible, on the same screen.”  The new advice: Disclosures should be “as close as possible” to the relevant claim.  Another design consideration from the 2000 document was the advice to avoid buried or generically labeled hyperlinks.  It also warned against using hyperlinks for disclosures involving key categories of information — for example, how much a product costs or certain health or safety information.  The new document builds on that, calling on advertisers to label hyperlinks as specifically as possible.  Another thing to bear in mind: how hyperlinks will function across the broad range of programs and devices consumers are likely to use.

4.   One big development since 2000:  space constraints in some ads, including on social media platforms.  The new .com Disclosures acknowledges the challenge that presents to marketers, but companies still have to make necessary disclosures clearly and conspicuously.  What about conveying that information via pop-ups?  Not a good idea since there are so many technologies for blocking them.

Now for that final thought:  Advertisers spend a lot of time and trouble dealing with disclosures.  Sometimes there may be no way around it.  But in many cases, the need for a disclosure is really a warning sign that the underlying ad claim may contain some element of deception.  Rather than focusing on fonts, hyperlinks, proximity, platforms, and the whole disclosures rigmarole, how about stepping back and reformulating the ad claim to get rid of the need for a disclosure in the first place?

We’re not sayin’.  We’re just sayin’.

Watch for more on the revised .com Disclosures in future posts.