The FTC issued revised guidance for .com disclosures earlier this week and while the agency didn’t particularly break any dramatic new ground they did continue a trend of offering more specific guidance and examples.
The new guides focus on several key points. While this would no longer be a blog if we discussed them all here, there are a few we wanted to highlight (and we will likely blog on more things to ponder in the guides in future). First, the FTC asks marketers to consider whether key information can be included in the main claim itself rather than through a disclosure. This is easier said than done in many cases, but we agree it is better to start with trying to disclose all consumers need to know right up front. Second, they expand upon earlier guidance regarding the placement of disclosures. The new guides repeat the advice that a “disclosure is more effective if it is placed near the claim it qualifies or other relevant information.” And while the guides state that it is more likely consumers will notice the disclosure if it is “placed next to the information, product or service to which it relates,” the guides also conclude more generally that a “disclosure is more likely to be effective if consumers view the disclosure and the claim that raises the need for disclosure . . . together on the same screen.” Most of the subsequent discussion, and many of the helpful illustrations, then relates to how to make a disclosure noticeable even when scrolling is required.
The new guides also discuss the use of hyperlinks (which this blog and most other blogs are prolific users of). While the guides discourage the use of hyperlinks to disclose integral information or information relating to health and safety, they recognize that hyperlinks can be particularly useful for lengthy disclosures or disclosures that must be made repeatedly. The guides repeat the earlier admonition that hyperlinks must be noticeable and labeled in such a way to convey the importance of the information for which the link is provided. The guides discourage the use of underlining or symbols or icons as hyperlinks because some consumers may not recognize their significance. Further, advertisers are urged to avoid using vague labels for hyperlinks such as “disclaimer,” “more information,” “details,” “fine print” or even “important information.” As with disclosures generally, hyperlinks should be proximate to the triggering claim or other relevant information and format, color or graphics can be used to help increase the visibility of hyperlinks. Thus, one of the examples criticizes the use of a hyperlink that states “more details on the jewelry you are purchasing” because it is unclear what those details relate to.
The new guides also caution that disclosures on the checkout page may not suffice. They emphasize that disclosures should be provided before the consumer orders the product or adds it to his or her cart. In addition, the guides caution that in some instances consumers may shop for a product online but make the actual purchase at a brick and mortar store and thus never see important information that is conveyed only at online checkout.
The new guides also address whether disclosures must be made on space-constrained ads such as banner ads. In general the guides suggest that this depends upon a number of factors including the importance of the information, how easily the information could be disclosed and whether the product can be bought elsewhere. If the product can be bought elsewhere then consumers may never “click through” to the website to purchase the product and see the relevant disclosures. In addition, if the ad is a “teaser” ad that does not identify the product then having the disclosure on the “click-through” is likely permissible.
Finally, at least two other points are worth a mention here. First, the guides emphasize that disclosures must be clear and conspicuous on all devices and platforms on which the ads appear. If a disclosure can’t be made clear and conspicuous on a particular device or platform, then the ad shouldn’t appear there. Second, the guides note that disclosures that are less directly relevant to the product or service being advertised are less likely to be expected by consumers and so should be given particular prominence. The guides note in particular disclosures relating to the use of a negative option program in connection with the sale of a product or service.
If you have questions you are pondering, the ABA Antitrust Section is sponsoring a free panel discussion on Wednesday, March 20 at 1:30 pm eastern that Randy will moderate with FTC and NAD staff to review the changes and what they mean for marketers. We hope you will register here to join us.