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Getting It Right on Disclosures in Digital Advertising: Examples from the FTC

Recently I blogged on the Federal Trade Commission's  new guidance which explains how to make clear and conspicuous digital disclosures in online advertising to avoid deception. For marketers promoting in social and mobile channels, the new guidance caters for the expanding use of small screens and the rise of social media marketing.

Marketers must now take into account responsive design for differing screen resolutions and limitations (i.e. mouse-overs which don't work on mobile or touchscreen devices). Disclosures, for example, shouldn't be conveyed via pop-ups, because they are often blocked.

Do take a look at my summary of the guide and also refer to the FTC guidance itself for fuller details on what is covered.

As always, it’s easier to understand when you can see the advice in practice. Here are some of the of dos and dont's from the FTC report, which give a clear idea of future requirements.

Proximity and placement

Proximity increases the likelihood that consumers will see the disclosure and relate it to the relevant claim or product. Online ads, however, have the advantage – or disadvantage – of  hyperlinks that move the user in different depths of information. Screen restrictions on mobile devices may require significant vertical and horizontal scrolling to view all the information presented.

The “triggering claim” should, ideally, be placed in the same screen. When scrolling is unavoidable, text or visual cues should be used to encourage consumers to scroll in the right direction, i.e. “see below for important information on restocking fees” will work better than a simple “details below”.

Advertisers should consider how the page is displayed when viewed on different devices, as scroll bars, for example, are not displayed on every device.

This ad must disclose that the diamond weights are not exact and that a 3/4 carat diamond may weigh between .72 and .78 carats. Here, though, because of the blank space between the textual description of the product and the disclosure when viewed on a smartphone, even consumers who scroll down to the end of the text (see right-hand image) will probably think that there is no more information to view and are likely to miss the disclosure.

FTC Diamond non-compliance


Hyperlinking to a disclosure

Hyperlinked digital disclosures may be particularly useful if the disclosure is lengthy or if it needs to be repeated. However, if a disclosure consists of a word or phrase that may be easily incorporated into the text, along with the claim, this option should be used. This is particularly true for cost information or health and safety disclosures.

If the details of the disclosure are too complex to describe adjacent to the claim, you can provide those details by using a hyperlink. The key considerations are labelling, consistency, placement and prominence; and handling of the disclosure on the click-through page or screen.

The hyperlink’s label (text or graphic) affects whether consumers actually click on it and see and read the disclosure, so they should be obvious, and convey the importance, nature, and relevance of the information.

Simply hyperlinking a single word or phrase in the text of an ad is not likely to be effective. Symbols and icons, for example, could confuse consumers as to where the related disclosure can be found, or “mouse-overs” may not work on mobile devices. Treating hyperlinks consistently within a site or application can increase the chances that consumers will click on them.

Example 1

In this example, the hyperlink “Important Health Information” leads to a disclosure, “Frost-a-tron may not keep perishable food items cold enough to prevent the growth of bacteria when the temperature is over 80ºF, such as in a hot car. Use in these conditions could lead to food-borne illness.

The fact that the cooler might not keep food cold enough to prevent the growth of dangerous bacteria should not be hidden behind a hyperlink, even one labeled “Important Health Information.” This is especially true when the cooler is promoted for keeping perishable food cold on road trips. Moreover, any disclosure that is integral to the primary claim should be immediately adjacent to that claim.

FTC Digital Advertising Hyperlink 1

Example 2

The hyperlink “Restocking fee applies to all returns.” leads to the disclosure, “If you return the Frost-a-tron within 30 days there is a restocking fee of $19.95. After 30 days and before 90 days, the restocking fee is $29.95. After 90 days, the restocking fee is $49.95. Shipping and handling fees are non-refundable. No COD on returns.” The details in this return policy are probably too complex to disclose next to the guarantee, so hyperlinking is OK. The label of the hyperlink adequately conveys the nature and relevance of the information to which it leads.

FTC Hyperlink Digital Advertising 3

FTC Hyperlink Digital Advertising 2



The idea is to “get consumers to the message quickly”, and constantly analyze click-through data to verify that a disclosure link is not missed. 
FTC .com Disclosures, 2013

Space restrictions

Space restrictions for ads are a major concern, as conspicuous and clear disclosures have to be included regardless of the limitations.

Most webpages viewable on desktop devices are also accessed using smartphones, but, as discussed earlier, consumers may miss disclosures on mobile devices because of the need to zoom in on text and to scroll horizontally as well as vertically.

Disclosures are more likely to be clear and conspicuous on websites that are optimized for mobile devices or created using responsive design, which automatically detects the kind of device the consumer is using to access the site and arranges the content on the site so it makes sense for that device.

Example 3

In this example, consumers might not expect a monthly service fee for cameras used to monitor their homes over the internet, so a disclosure is necessary to prevent the ad from being misleading. Placing the disclosure in a different column than the camera price it qualifies, rather than directly under the price information, as in this example, makes it less likely that consumers viewing this webpage on a desktop computer would notice the disclosure here. When the same ad is viewed on a mobile device that requires zooming, the disclosure is completely lost.


FTC mobile digital advertising 1

FTC mobile digital advertising 2

Example 4

This space-constrained message (a tweet) requires two disclosures: (1) that JuliStarz is a paid endorser for Fat-away; and (2) the amount of weight that consumers who use Fat-away can generally expect to lose in the depicted circumstances, which is much less than the 30 pounds Juli says she lost in 6 weeks. (See Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 255.)

Even if the link in the message led directly to those disclosures on the Fat-away website, those disclosures would not be adequate if consumers could purchase Fat-away at a brick and mortar store or from a third-party online retailer (a retailer not affiliated with the advertiser). In either case, they might not click through to the Fat-away website, and thus would not see these disclosures.

FTC digital advertising tweet

FTC mobile digital advertising correct tweet

FTC mobile digital advertisingtweet 3

Example 5

FTC blogging digital advertising


What now?

US brands and their agencies need to review these guidelines, ensure they understand them and be assured that compliance forms part of their approval processes.

It’s also worth mentioning that, under the FTC’s Guide for Testimonials and Endorsements, reasonable monitoring of disclosures is required: that is to say, endorsers should be advised of their responsibilities and their online behavior monitored by the advertiser to make sure it is in compliance.

Finding out more from the FTC

The FTC provides businesses with resources, insights, and access to closed investigations and actions at ftc.gov.

The Word of Mouth Marketing Association (WOMMA) has recently published an updated Social Media Disclosure Guide.

My thanks to my colleague César Struve, who co-wrote and researched this article.

This blog expresses the views of the authors only. It is not legal advice and is not intended to be relied upon. If you have a legal concern about any of the issues covered in this blog, we recommend you seek independent legal advice.

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