FTC Updates Guidance for Mobile and Internet Advertising Disclosures Reply

On March 12, the FTC released guidance for mobile and other online advertisers. The new guidance, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” adapts and expands prior FTC guidance to account for a decade’s worth of additional experience with online marketing practices, consumers’ increasing use of smartphones, and merchants’ increasing use of social media marketing. The new guidance highlights several considerations for businesses as they develop advertisements for online and mobile media:(i) the same consumer protection laws regarding unfair or deceptive acts or practices that apply to commercial activities in other media apply online and in the mobile marketplace; (ii) limitations and qualifying information should be incorporated into any underlying claim, rather than provided as a separate disclosure qualifying the claim; (iii) marketing materials that may be viewed on a variety of platforms, including handheld devices, should be designed so that required disclosures are effectively delivered on each platform; (iv) required disclosures must be clear and conspicuous, and (v) if a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violative of a FTC rule, and it is not possible to make the disclosure clearly and conspicuously, then that ad should not be disseminated. The FTC offers specific guidance, with corresponding examples, for complying with the clear and conspicuous standard in online and mobile advertisements. For example, the FTC reminds advertisers that a disclosure should be placed as close as possible to the trigger claim, and provides guidance for space constraints and the use of hyperlinks.

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