MLM Attorney Kevin Grimes: FTC Updates Online Advertising Disclosure Guidelines

The Federal Trade Commission has updated its online advertising disclosure guidelines to reiterate that just because the media are new or rapidly changing does not mean that the law and FTC regulations do not apply.  “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” makes it clear that online advertising, whether desktop or mobile, large screen or small, must include “clear and conspicuous” disclosures, regardless of the space allotted by the medium.

The new guidelines explain the benchmark succinctly: if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate an FTC rule, and the disclosure cannot be made “clearly and conspicuously” regardless of the device or the platform, you should not run the ad.

The “clear and conspicuous” criterion assumes that a “reasonable consumer” will not necessarily read an entire ad. Therefore, “proximity and prominence” are important factors. Simply making the disclosure available does not meet the standard. It must as prominent and placed as close to the claim as possible.  That means extra care needs to be taken with ads for mobile devices, since making the consumer scroll to see the disclosure may not meet the standard.

There are no exceptions for social media advertising, so Twitter ads and promotional tweets, as well as Facebook posts and offers, must comply. Given the space available for such messages, compliance can be a challenge, or mean that certain types of ads just can’t be used on social or other limited-space media.

You can download and read the new guidelines here.