While these are guidelines, and don’t have the force of law, they do give provide some important insight on what the FTC rightly sees as some key challenges related to mobile and social devices and services as they relate to advertising. And it lays out both general guidelines and offers some very specific examples of what it sees as permissible and what might become problematic.
The bottom line is that while mobile devices and social networking may be constrained due to relatively small screen sizes and character limits, “cyberspace is not without boundaries, and deception is unlawful no matter what the medium.”
Brian McCalmon, an attorney with K&L out of Washington, D.C., notes that the March revisions were an update to the “Dot Com Disclosures” document that the FTC (News - Alert) issued in 2000. That focused on what is required in the online space to prevent marketing and ad efforts from violating Section 5 of the FTC Act, which prevents false, deceptive, unfair statements – either by submission or omission.
“I think [these disclosures and the new ones issued in March] make sense,” said McCalmon. “This was preceded by a pretty intensive exercise.”
Indeed. The FTC issued the guidelines document in March, after completing a lengthy public input and review process.
“My sense is they exhausted the issue pretty thoroughly,” added McCalmon. “I don’t see any obvious holes in this. I think this is pretty helpful.”
CUSTOMER magazine reached out to major advertising firms, including CP+B, Grey Advertising, and Ogilvy (News - Alert), but either didn’t get a response at all or was told they don’t publicly comment on public policy.
In any case, McCalmon says he doubts there will be any negative blowback regarding these new rules.
“The most controversial [part] will be the FTC statement that if you can’t get your disclosure into your Twitter endorsement or ad, then their advice is you don’t use the medium.”
Here are a few other choice excerpts from the March guidelines:
“Websites, and mobile applications, however, are interactive and have a certain depth — with multiple pages or screens linked together and pop-up screens, for example — that may affect how proximity is evaluated. Mobile devices also present additional issues because a disclosure that would appear on the same screen of a standard desktop computer might, instead, require significant vertical and horizontal scrolling on a mobile screen. In evaluating placement, advertisers should also take into consideration empirical research about where consumers do and do not look on a screen.”
“Requiring consumers to scroll in order to view a disclosure may be problematic, however, because consumers who don’t scroll enough (and in the right direction) may miss important qualifying information and be misled.
“When advertisers are putting disclosures in a place where consumers might have to scroll in order to view them, they should use text or visual cues to encourage consumers to scroll and avoid formats that discourage scrolling.
Text prompts can indicate that more information is available.”
“Hyperlinks allow additional information to be placed on a webpage entirely separate from the relevant claim. Hyperlinks can provide a useful means to access disclosures that are not integral to the triggering claim, provided certain conditions (discussed below) are met. Hyperlinked disclosures may be particularly useful if the disclosure is lengthy or if it needs to be repeated (because of multiple triggering claims, for example).
However, in many situations, hyperlinks are not necessary to convey disclosures. If a disclosure consists of a word or phrase that may be easily incorporated into the text, along with the claim, this placement increases the likelihood that consumers will see the disclosure and relate it to the relevant claim.”
The key considerations for evaluating the effectiveness of all hyperlinks are:
? the labeling or description of the hyperlink;
? consistency in the use of hyperlink styles;
? the placement and prominence of the hyperlink on the webpage or
? the handling of the disclosure on the click-through page or screen.
“Account for viewing on different devices.Most webpages viewable on desktop devices may also be viewable on smartphones.Therefore, unless a website defaults to a mobile-optimized (or similarly responsive) version, advertisers should design the website so that any necessary disclosures are clear and conspicuous, regardless of the device on which they are displayed…. Among many other considerations, if a disclosure is too small to read on a mobile device and the text of the disclosure cannot be enlarged, it is not a clear and conspicuous disclosure. If a disclosure is presented in a long line of text that does not wrap around and fit on a screen, it is unlikely to be adequate.”
Edited by Stefania Viscusi