The Federal Trade Commission (FTC) recently released its updated guidance for online advertising disclosures titled .com Disclosures: How to Make Effective Disclosures in Digital Advertising (the “2013 Guide”). The prior version of this guidance was issued in May 2000 (before Twitter, Facebook, Instagram and other platforms existed). The 2013 Guide provides instruction and examples with regard to how the established rules apply to disclosures in advertisements on social media platforms or on devices with varying screen sizes and functionality, such as banners and Tweets (referred to in the 2013 Guide as “space-constrained ads”).
As discussed in our first column—advertising claims, whether express or implied and regardless of whether in a newspaper, on television or online—must be truthful and not misleading, substantiated and fair. The same holds true in the social media context. When a disclosure is necessary to limit an advertising claim or avoid a misleading understanding of an advertising claim, that disclosure must be clear and conspicuous. Whether a disclosure is clear and conspicuous “is measured by its performance—that is, how consumers actually perceive and understand the disclosure within the context of the entire ad.” The 2013 Guide reinforces the concept that “[t]he key is the overall net impression of the ad—that is, whether the claims consumers take from the ad are truthful and substantiated,” viewed under the “reasonable consumer” standard.
The 2013 Guide also makes clear that advertisers should consider other factors that could inhibit effective disclosures, such as using pop-ups for disclosures and variations in the way that disclosures appear in different browsers and on varying types of devices.
Understanding that “space-constrained ads” generally are teasers which link to the actual offer, the 2013 Guide states that “[i]f a space-constrained ad contains a claim that requires qualification, the advertiser disseminating it is not exempt from disclosure requirements,” and the advertiser should “disclose required information in the space-constrained ad itself or clearly and conspicuously on the website to which it links.” The more difficult analysis is making the call as to whether the disclosure needs to be included in the “space-constrained ads” or in the linked page.