Is Your Ad Legal? Digital Advertising Raises Additional Issues for Marketers
Regardless of the form of the advertisement, the disclosure of the qualifying details for the advertised offers are key to the legitimacy (and legality) of an advertisement. Such disclosures need to be made in a clear and conspicuous manner. In traditional print advertising, these disclosures are typically found in the fine print footnotes at the bottom of the advertisement. Radio disclosures are typically read before or immediately following the advertisement, and television ads are read and/or superimposed upon the screen.
When it comes to digital advertising, however, the issues become somewhat more complex. The key to any disclosure is that it be easily accessible and likely to be read by the consumer. The space limitations of mobile devices and web pages, and the use of hyperlinks and pop-ups, all make the clear and conspicuous analysis slightly more challenging. To assist businesses in the truthful advertising and marketing of their products or services, the FTC has updated its 2000 guidance entitled .com Disclosure: How to Make Effective Disclosures in Digital Advertising (opens as a PDF), which addresses how the basics of advertising law will be applied to new technologies that have been developed since the original publication of this guidance in 2000. This revised document confirms that when evaluating whether a particular disclosure is clear and conspicuous, the FTC will consider:
- The placement of the disclosure in the advertisement and its proximity to the claim it is qualifying;
- The prominence of the disclosure;
- Whether the disclosure is unavoidable;
- The extent to which items in other parts of the advertisement might distract attention from the disclosure;
- Whether the disclosure needs to be repeated several times in order to be effectively communicated, or because consumers may enter the site at different locations or travel through the site on paths that cause them to miss the disclosure;
- Whether disclosures in audio messages are presented in an adequate volume and cadence, and visual disclosures appear for a significant duration; and
- Whether the language of the disclosure is understandable to the intended audience.
The application of these factors to digital advertisements often poses challenges for online advertisers. For example, when analyzing the proximity of a disclosure in a print ad, the analysis might focus on how far from the actual claim the disclosure is located. In digital ads, by contrast, if the disclosure is not included in the same screen shot and, as a result, a consumer would need to scroll down to the bottom of the page to see the disclosure, is it really disclosed in a clear and conspicuous manner? This becomes an even bigger issue when mobile devices are taken into consideration, as disclosures that may appear in the same screen shot on a standard desktop view may require significant vertical or horizontal scrolling on a mobile device.