FTC Could Revise its Dot Com Disclosures Guidelines by Fall 2012

By Jennifer M. Thomas –

Last week, the Federal Trade Commission (“FTC”) hosted a workshop entitled “In Short: Advertising and Privacy Disclosures in a Digital World.” The workshop was intended to explore whether the FTC needs to revise its online advertising disclosure guidelines (“Dot Com Disclosures”), which were published in 2000.  The FTC has been seeking input on revisions to the Dot Com Disclosures since May 2011.  According to Mary Engle (Associate Director, FTC Division of Advertising Practices), the FTC is accepting written comments on the issue through July 11, 2012, and aims to publish “something” in response to the workshop and comments by Fall 2012.  The FTC’s ongoing effort to guide advertisers on mobile and social media casts into sharp relief the dearth of meaningful FDA guidance in this area.

The FTC workshop was limited to discussing best practices for making disclosures in digital media.  It did not address how to decide whether a disclosure is necessary in the first place—although several panel members did express opposing views about the need for disclosures, consumer expectations for digital media, etc.   There were a few presentations that included research and data on how consumers read disclosures online, and the innovative techniques that some companies are creating to effectively communicate disclosures (including privacy policies).  For the most part, the workshop consisted of industry and public-interest stakeholder panels evaluating examples of online and mobile advertisements and debating whether a particular disclosure technique adequately protects consumers.  The examples included blog posts, tweets, traditional online ads, as well as ads and offers viewed on a mobile device.

At the close of the workshop, Ms. Engle summarized the FTC’s take-aways:

• Context matters.  It is not possible to devise a universal rule for disclosures, but the FTC will try to eke out as many black and white areas as it can from among the shades of gray.
• Media platforms must adapt to the law, and not vice versa.  If it is not possible to run a compliant ad on a particular platform, then the ad simply should not run on that platform.
• Using hyperlinks for disclosures may be acceptable in some circumstances, but the label of the link itself needs to be attention-getting and accurately descriptive.   I.e., “Disclosures,” “Details,” or “More Information” generally will not suffice as a link title.
• The timing of disclosures — i.e., placement of a hyperlink on the page, proximity to the claim being clarified, placement in relation to the flow of purchase—is important to consumer attention and comprehension.
• Icons (for privacy disclosures in particular) or hashtags (for Twitter) may be useful, but they depend on consumer understanding.  The lingering question is ‘who should be responsible for educating consumers?’
• The solution for some digital media may be to revise claims so that no disclosure is necessary.

The FTC has not yet made the presentation slides used during the workshop available for download.  However, you can watch a webcast of the workshop and flip through the presentation slides here.