Internet and mobile advertising is subject to the same rules as anything else, the Federal Trade Commission recently assured us in a detailed 53-page booklet. To be fair, online advertising is subject to ordinary advertising rules, but there are always twists to how ordinary rules are applied on online. The new FTC guidance focuses on those online twists.
Anyone involved in online ad clearance should read the FTC’s “.com Disclosures” booklet carefully. The booklet is generally designed the way the FTC wants online ads to be designed: with plain language text, clear headings, useful hyperlinks and conspicuous disclaimers. Here are a few key points:
- Important limitations on ad claims, including many cost, health and safety disclosures, should be incorporated into the ad terms, not made in separate disclosures.
- Disclosures that don’t need to be in the text of the ad still need to be clear and conspicuous.
- Hyperlinks for disclaimers need to be placed near the claim to which they pertain and need to be properly labeled to indicate the type (and importance) of information to which they link. Labeling a disclaimer hyperlink as “disclaimer,” “more information” or “fine print” is often inadequate.
- When a purchase is involved, key disclosures may need to be made or repeated as the consumer adds goods to his or her shopping cart or makes the order.
“Space-constrained ads” — that’s legalese for ads displayed on smartphone screens — raise special concerns:
- When normal web ads are displayed on smartphones, those ads need to be designed so that disclosures will be apparent to smartphone users. For example, in the same column as the claim they modify.
- Even short teaser ads need to contain key disclosures. In one example, the agency explained how a short two-line diet product teaser ad can be made compliant with the addition of “Ad:” (making clear it was a paid endorsement) and “Typical loss: 1lb/wk” (adding that key qualification to the otherwise broad diet benefit claim).
The FTC booklet also reminds readers of a few advertising basics:
“Deception is unlawful matter what the medium.”
“Advertisers are responsible for ensuring that all express and implied claims that an ad conveys to reasonable consumers are truthful and substantiated.”
And the one lawyers like best:
“Whether a particular ad is deceptive, unfair or otherwise violative … will depend on the specific facts at hand.”