FTC May Soon Be Updating Its Dot-Com Disclosure Guidelines

The Federal Trade Commission (FTC) recently requested comments on potential updates to its 2013 FTC Dot Com Disclosure Guidance: How to Make Effective Disclosures in Digital Advertising.  Generally speaking, the purposes of the Guidance is to provide information to digital advertisers in order to comply with the law.

The FTC Act’s prohibition on “unfair or deceptive acts or practices” encompasses online advertising, marketing, and sales.  In addition, many FTC rules and Guides are not limited to any particular medium used to disseminate claims or advertising, and therefore.

The Guidance sets forth instructions on avoiding express and implied deceptive statements.  It also provides guidance regarding disclosures, including what to incorporate into the underlying claim, ensuring that disclosures are “clear and conspicuous,” what to consider with video and audio disclosures, taking account of the various devices and platforms consumers may use to view advertising, how to approach space-constrained ads, what constitutes permissible  use of hyperlinks, evaluating technological limitations or unique characteristics of  communications methods,

The FTC plans to increase investigation and enforcement within the digital marketing industry.  The agency is also seeking input on “dark pattern” tactics and advertising used to deceive  consumers, as well as automatic renewal subscriptions and free trials, social media advertising, online marketplaces and lead generation referrals.

“We know that some companies are wrongly citing our current guides to justify dark patterns and other forms of digital deception,” said FTC attorney Samuel Levine, Director of the FTC’s Bureau of Consumer Protection.  “We are looking to update the guides to make clear that online tricks and traps will not be tolerated, and we look forward to hearing from the public on this initiative.”

Issues of particular concern to the FTC attorneys include, without limitation:

• The use of technologies, activities or features, such sponsored and promoted advertising on social media platforms
• The use of advertising content embedded in games
• The use of dark pattern techniques in digital advertising

• The use of manipulative user interface designs used on websites and mobile apps, and in digital advertising
• Whether the current guidance adequately addresses advertising on mobile devices;
• Whether additional guidance is needed to reflect multi-party selling arrangements involved in e-commerce and affiliate marketing arrangements
• How the guidance on the use of hyperlinks can be bolstered
• The use of online disclosures, including when faced with space-constraints

Consult with qualified advertising compliance with questions about compliance with the FTC Dot Com Guidelines and the potential updates relating thereto.

Informational purposes only. Not legal advice. May be considered attorney advertising.