Folks, I just put this on the deliverability.com blog as well.
The Federal Trade Commission released updates this week to what is known as the Dot-Com Disclosures, guidance for how marketers can make ad disclosures clear and conspicuous across all platforms. The FTC issued the original Dot Com Disclosures in 2000 (before Twitter, Facebook and apps on mobile devices.), and the recent revision provides guidance with respect to technologies new since then. Although the fundamental rules have not changed, the guidance provides useful direction on how the FTC believes advertisers should comply with the law when making claims in various media.
One of the biggest reminders (not changes) from the FTC is screen size issue. For instance, if the legal and privacy disclosures on an advertiser’s website look fine when the site is viewed on a desktop, but they may not be sufficiently clear and conspicuous when viewed on a mobile browser then the advertiser needs to stop and ensure they are clearly and conspicuously displayed in all such media no matter the device it is viewed on. If not, the ad could be found to be deceptive or unfair. “If the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used”
The FTC in the prior guidance said that such disclosures need to be put near or on the same screen/page as the ad claim. At the same time, they advise advertisers to avoid using hyperlinks for disclosures that involve product cost or certain health and safety issues. If it is not possible to make a required disclosure clear and conspicuous in a particular medium, then the advertiser should either modify the ad or not run it.
A few highlights:
- A disclosure will be more effective if it is placed near the qualified claim.
- To be clear and conspicuous, a disclosure must be prominent in the context of the ad
- Considerations for scrolling. If the placement of a disclosure might require that a consumer scroll (in any direction — consider viewing a website on a mobile device) to see it, the ad should encourage the consumer to scroll to see it.
- Simple disclosures should NOT be placed behind a hyperlink, and neither should disclosures that are an integral part of a claim or inseparable from it.
- If a disclosure is placed behind a hyperlink, the link should be named specifically to indicate the nature and importance of the information behind it
- Disclosures must be effectively communicated before the decision to purchase.
- Space constraints, such as in social media (Twitter), do not relieve advertisers of their consumer protection responsibilities
Remember folks, the FTC has the authority against unfair or deceptive acts or practices broadly covers advertising claims, marketing and promotion, in almost every sector of the economy, and in all media. So, you need to consider ANY ad no matter the channel. It has long been a staple of advertising law that, if a disclosure is necessary to keep an advertisement from being deceptive or is otherwise required by law, then it must be presented clearly and conspicuously.
You and your legal/privacy teams should review this latest update carefully. There is no set formula for making a clear and conspicuous disclosures.
Read it: 2013 Dot-Com Disclosures
Don’t Just Send, Deliver!