Yesterday, the Federal Trade Commission (FTC) released updated guidelines (PDF) for regulating unfair and deceptive trade practices in online marketing. The “.Com Disclosures: How to Make Effective Disclosures in Digital Advertising,” were released in 2000, before the meteoric rise of social media marketing and the advent of smartphone advertising. As the evolution of these two areas has drastically changed the way brands communicate with consumers and blurred lines between corporate and word of mouth advertising, the FTC saw a need to extend these guidelines to cover all online, social and mobile marketing.
Like the original, this set of guidelines focuses on ensuring that ads are not unfair or deceptive by requiring disclosures to avoid consumer confusion. The main implications for marketers are not in the required content of disclosures and consumer protection laws, which remain the same in the updated guidelines, but in the physical placement of disclosures. The updated guidelines include examples and mock ads that demonstrate implementation of the guidelines in social media and mobile marketing contexts. The most important updates are in the areas of disclosures and hyperlinks.
Disclosures must be clear and conspicuous and placed in close proximity to relevant claims on all platforms on which consumers can view ads. Unlike the original set of rules, which provided that disclosures should be placed “near, and when possible, on the same screen,” the new guidelines direct advertisers to place disclosures “as close as possible,” to the relevant claim. The most important thing to be aware of here is making sure that disclosures are properly placed on mobile ads, which are usually viewed on small screens. On a tiny screen, space is at a premium, so marketers should be careful not to make an abundance of claims requiring disclosures. Additionally, advertisers should ensure that most of their ad is able to be viewed all at once on the small screen and that relevant disclosures are included in this view (i.e., consumers should not have to scroll a significant way down in order to find disclosures). The guidelines also discourage the use of pop-ups to provide disclosures, as many users have blocked pop-ups on their phones and Internet browsers. The bottom line is that if an ad cannot be placed clearly and conspicuously on a platform, then the ad should not be run on it.
Like the original guidelines, the revised guidelines discourage the use of hyperlinks for health, cost and safety related disclosures and call for hyperlinks to be labeled clearly. The new guidelines also encourage advertisers to label hyperlinks as clearly as possible and to consider how hyperlinks will function on a variety of platforms. Advertisers should take extra care to ensure that hyperlinks are functioning on all devices, like mobile phones. Additionally, the guidelines create a responsibility for advertisers to monitor hyperlink usage and to change disclosure methods if enough people are not clicking on the disclosure links to make the disclosures effective.