Mini Law Lesson: FTC’s New .com Disclosures Guidance

Updated to Address Current Online and Mobile Advertising Environment

Brian Heidelberger Winston & Strawn

bheidelb@winston.com

IMPORTANT DISCLAIMER

• This is not legal advice.• I am not your attorney.

General Rules

• Law hasn’t changed• Disclosures can’t cure a false claim• Can only qualify a claim to help keep it from being

misleading• If information is material it must be clearly and

conspicuously disclosed• Incorporate material limitations in the claim rather

than separate disclosure (when practical)– If it can easily be incorporated in text, it should be

When Using a Hyperlink to Disclose Material Terms

• Use an obvious link• Label it to convey the information appropriately• Don’t relegate material terms to “terms”• Make links consistent in style • Keep it close to the information is qualifies• Take consumers directly to the qualifications on the

click-through• Monitor click-through rates to assure effectiveness

Material Terms Must be Clear and Conspicuous

• Try not to require scrolling• If you require scrolling give text or visual cues• Keep abreast of research on what consumers view on screen• Make disclosures before and after people “add to cart”• If sending people to store, make sure material limitations are

disclosed before they get there• Repeat disclosures for long websites/or easily missed• Don’t relegate important info to “legal”• Audio Claims should have “audio” disclosures• Make the limitations easy to understand• Don’t make the ad if you can’t make it clear

Material Terms Should be Close to Claim it Qualifies

Disclosure Needs to Consider Mobile Use

Important Info Can Be On Click-Through With Proper Disclosure

Important Info Can Be On Click-Through With Proper Disclosure

A Highlighted Link is Likely Not Enough

Abbreviations Are Hard to Use

Link Needs to be Close to Claim

Important Price Limitations Need to be Near Price

Not Just on the Check Out Page

Material Connection Shouldn’t Just be Disclosed Via an Unclear Short Link

• Good

• Bad

Disclosure in Multiple Tweets Can Create Difficulties

Consumers Don’t Understand or Read Every Hashtag

Disclosure of Blogger Affiliation Shouldn’t be Relegated to The End