How to Make Effective Internet Advertising Disclosures

internet advertising disclosures

Are you making effective online advertising disclosures?

In March 2013, the U.S. Federal Trade Commission updated its guide “.com Disclosures – How to Make Effective Disclosures in Digital Advertising.” It remains to be seen how effective these updated Internet advertising guidelines will be in cleaning up ecommerce disclosures and disclaimers.

The following is the text of the updated online advertising guide (without the appendix and footnotes).

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Overview

In the online marketplace, consumers can transact business without the constraints of
time or distance. One can log on to the Internet day or night and purchase almost anything
one desires, and advances in mobile technology allow advertisers to reach consumers nearly
anywhere they go. But cyberspace is not without boundaries, and deception is unlawful no
matter what the medium. The FTC has enforced and will continue enforcing its consumer
protection laws to ensure that products and services are described truthfully online, and that
consumers understand what they are paying for. These activities benefit consumers as well as
sellers, who expect and deserve the opportunity to compete in a marketplace free of deception
and unfair practices.
The general principles of advertising law apply online, but new issues arise almost
as fast as technology develops — most recently, new issues have arisen concerning space-
constrained screens and social media platforms. This FTC staff guidance document describes
the information businesses should consider as they develop ads for online media to ensure
that they comply with the law. Briefly,

1. The same consumer protection laws that apply to commercial activities in other
media apply online, including activities in the mobile marketplace. The FTC Act’s
prohibition on “unfair or deceptive acts or practices” encompasses online advertising,
marketing, and sales. In addition, many Commission rules and guides are not
limited to any particular medium used to disseminate claims or advertising, and
therefore, apply to the wide spectrum of online activities.

2. When practical, advertisers should incorporate relevant limitations and qualifying
information into the underlying claim, rather than having a separate disclosure
qualifying the claim.

3. Required disclosures must be clear and conspicuous. In evaluating whether a
disclosure is likely to be clear and conspicuous, advertisers should consider its
placement in the ad and its proximity to the relevant claim. The closer the disclosure
is to the claim to which it relates, the better. Additional considerations include: the
prominence of the disclosure; whether it is unavoidable; whether other parts of
the ad distract attention from the disclosure; whether the disclosure needs to be
repeated at different places on a website; whether disclosures in audio messages
are presented in an adequate volume and cadence; whether visual disclosures
appear for a sufficient duration; and whether the language of the disclosure is
understandable to the intended audience.

4. To make a disclosure clear and conspicuous, advertisers should:

• Place the disclosure as close as possible to the triggering claim.
• Take account of the various devices and platforms consumers may use to view
advertising and any corresponding disclosure. If an ad is viewable on a particular
device or platform, any necessary disclosures should be sufficient to prevent the
ad from being misleading when viewed on that device or platform.
• When a space-constrained ad requires a disclosure, incorporate the disclosure
into the ad whenever possible. However, when it is not possible to make a
disclosure in a space-constrained ad, it may, under some circumstances, be
acceptable to make the disclosure clearly and conspicuously on the page to
which the ad links.
• When using a hyperlink to lead to a disclosure,
– make the link obvious;
– label the hyperlink appropriately to convey the importance, nature, and
relevance of the information it leads to;
– use hyperlink styles consistently, so consumers know when a link is
available;
– place the hyperlink as close as possible to the relevant information it qualifies
and make it noticeable;
– take consumers directly to the disclosure on the click-through page;
– assess the effectiveness of the hyperlink by monitoring click-through rates
and other information about consumer use and make changes accordingly.
• Preferably, design advertisements so that “scrolling” is not necessary in order
to find a disclosure. When scrolling is necessary, use text or visual cues to
encourage consumers to scroll to view the disclosure.
• Keep abreast of empirical research about where consumers do and do not look
on a screen.
• Recognize and respond to any technological limitations or unique characteristics
of a communication method when making disclosures.
• Display disclosures before consumers make a decision to buy — e.g., before
they “add to shopping cart.” Also recognize that disclosures may have to be
• repeated before purchase to ensure that they are adequately presented to
consumers.
• Repeat disclosures, as needed, on lengthy websites and in connection with
repeated claims. Disclosures may also have to be repeated if consumers have
multiple routes through a website.
• If a product or service promoted online is intended to be (or can be) purchased
from “brick and mortar’ stores or from online retailers other than the advertiser
itself, then any disclosure necessary to prevent deception or unfair injury should
be presented in the ad itself — that is, before consumers head to a store or
some other online retailer.
• Necessary disclosures should not be relegated to “terms of use” and similar
contractual agreements.
• Prominently display disclosures so they are noticeable to consumers, and
evaluate the size, color, and graphic treatment of the disclosure in relation to
other parts of the webpage.
• Review the entire ad to assess whether the disclosure is effective in light of
other elements — text, graphics, hyperlinks, or sound — that might distract
consumers’ attention from the disclosure.
• Use audio disclosures when making audio claims, and present them in a volume
and cadence so that consumers can hear and understand them.
• Display visual disclosures for a duration sufficient for consumers to notice, read,
and understand them.
• Use plain language and syntax so that consumers understand the disclosures.

5. If a disclosure is necessary to prevent an advertisement from being deceptive,
unfair, or otherwise violative of a Commission rule, and it is not possible to make the
disclosure clearly and conspicuously, then that ad should not be disseminated. This
means that if a particular platform does not provide an opportunity to make clear
and conspicuous disclosures, then that platform should not be used to disseminate
advertisements that require disclosures.
Negative consumer experiences can result in lost consumer goodwill and erode
consumer confidence. Clear, conspicuous, and meaningful disclosures benefit advertisers and
consumers.

I. Introduction

Day in and day out, businesses advertise and sell their products and services online.12
The online universe presents a rewarding and fast-paced experience for consumers, but also
raises interesting — and occasionally complex — questions about the applicability of laws that
were developed long before “dot com,” “smartphone,” and “social media” became household
terms.
In May 2000, following a public comment period and a public workshop held to
discuss the applicability of FTC rules and guides to online activities, FTC staff issued Dot
Com Disclosures. That guidance document examined how the Commission’s consumer
protection statutes, rules, and guides apply to online advertising and sales and discussed FTC
requirements that disclosures be presented clearly and conspicuously, in the context of online
advertising.
In May 2011, FTC staff began seeking input to modify and update the guidance
document to reflect the dramatic changes in the online world in the preceding eleven years.
After three public comment periods and a public workshop, this revised staff guidance
document was issued in March 2013.3
This document provides FTC staff guidance concerning the making of clear and
conspicuous online disclosures that are necessary pursuant to the laws the FTC enforces. It
does not, however, purport to cover every issue associated with online advertising disclosures,
nor is it intended to provide a safe harbor from potential liability. It is intended only to provide
guidance concerning practices that may increase the likelihood that a disclosure is clear
and conspicuous. Whether a particular ad is deceptive, unfair, or otherwise violative of a
Commission rule will depend on the specific facts at hand. The ultimate test is not the size
of the font or the location of the disclosure, although they are important considerations; the
ultimate test is whether the information intended to be disclosed is actually conveyed to
consumers.
There is no litmus test for determining whether a disclosure is clear and conspicuous,
and in some instances, there may be more than one method that seems reasonable. In such
cases, the best practice would be to select the method more likely to effectively communicate
the information in question.
II. The Applicability of FTC Law to Online Advertising
The FTC Act’s prohibition on “unfair or deceptive acts or practices” broadly covers
advertising claims, marketing and promotional activities, and sales practices in general.iv The
Act is not limited to any particular medium. Accordingly, the Commission’s role in protecting
consumers from unfair or deceptive acts or practices encompasses advertising, marketing,
and sales online, as well as the same activities in print, television, telephone, and radio. The
Commission has brought countless law enforcement actions to stop fraud and deception online
and works to educate businesses about their legal obligations and consumers about their
rights.
For certain industries or subject areas, the Commission issues rules and guides. Rules
prohibit specific acts or practices that the Commission has found to be unfair or deceptive.v
Guides help businesses in their efforts to comply with the law by providing examples or
direction on how to avoid unfair or deceptive acts or practices.vi Many rules and guides
address claims about products or services or advertising in general and apply to online

advertising, as well as to other media.vii Therefore, the plain language of many rules and
guides applies to claims made online.viii For example, the Mail or Telephone Order Merchandise

rule, which addresses the sale of merchandise that is ordered by mail, telephone, facsimile
or computer, applies to those sales regardless of “the method used to solicit the order.”ix
Solicitations made in print, on the telephone, radio, TV, or online naturally fall within the rule’s
scope. In addition, the Guides Concerning the Use of Endorsements and Testimonials in
Advertising (“Endorsement Guides”) apply to “any advertising message . . . that consumers
are likely to believe reflects the opinions, beliefs, findings, or experience of a party other than
the sponsoring advertiser . . . .”x The Guides refer to advertising without limiting the media in
which it is disseminated and, therefore, encompass online ads.xi

III. Clear and Conspicuous Disclosures in Online Advertisements

When it comes to online ads, the basic principles of advertising law apply:
1. Advertising must be truthful and not misleading;xii
2. Advertisers must have evidence to back up their claims (“substantiation”);xiii and
3. Advertisements cannot be unfair.xiv
Unique features in online ads — including advertising delivered via social media
platforms or on mobile devices — may affect how an ad and any required disclosures are
evaluated.

A.   Background on Disclosures
Advertisers are responsible for ensuring that all express and implied claims that an
ad conveys to reasonable consumers are truthful and substantiated. When identifying these
claims, advertisers should not focus only on individual phrases or statements, but should
consider the ad as a whole, including the text, product name, and depictions.xv If an ad makes
express or implied claims that are likely to be misleading without certain qualifying information,
the information must be disclosed.
A disclosure can only qualify or limit a claim to avoid a misleading impression. It cannot
cure a false claim. If a disclosure provides information that contradicts a material claim, the
disclosure will not be sufficient to prevent the ad from being deceptive. In that situation, the
claim itself must be modified.
Many Commission rules and guides spell out the information that must be disclosed
in connection with certain claims. In many cases, these disclosures prevent a claim from
being misleading or deceptive.xvi Other rules and guides require disclosures to ensure that
consumers receive material information to assist them in making better-informed decisions,xvii
or to implement statutes furthering public policy goals.xviii In all of these instances, if a
disclosure is required, it must be clear and conspicuous.

B.   The Clear and Conspicuous Requirement
Disclosures that are required to prevent an advertisement from being deceptive, unfair,
or otherwise violative of a Commission rule, must be presented “clearly and conspicuously.”xix
Whether a disclosure meets this standard is measured by its performance — that is, how
consumers actually perceive and understand the disclosure within the context of the entire ad.
The key is the overall net impression of the ad — that is, whether the claims consumers take
from the ad are truthful and substantiated.xx If a disclosure is not seen or comprehended, it will
not change the net impression consumers take from the ad and therefore cannot qualify the
claim to avoid a misleading impression.
In reviewing their ads, advertisers should adopt the perspective of a reasonable
consumer.xxi They also should assume that consumers don’t read an entire website or online
screen, just as they don’t read every word on a printed page.xxii Disclosures should be placed
as close as possible to the claim they qualify. Advertisers should keep in mind that having to
scroll increases the risk that consumers will miss a disclosure.
In addition, it is important for advertisers to draw attention to the disclosure. Consumers
may not be looking for — or expecting to find — disclosures. Advertisers are responsible for
ensuring that their messages are truthful and not deceptive. Accordingly, disclosures must
be communicated effectively so that consumers are likely to notice and understand them in
connection with the representations that the disclosures modify. Simply making the disclosure
available somewhere in the ad, where some consumers might find it, does not meet the clear
and conspicuous standard.
If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or
otherwise violative of a Commission rule, and if it is not possible to make the disclosure clear
and conspicuous, then either the claim should be modified so the disclosure is not necessary
or the ad should not be disseminated. Moreover, if a particular platform does not provide an
opportunity to make clear and conspicuous disclosures, it should not be used to disseminate
advertisements that require such disclosures.xxiii

C.  What Are Clear and Conspicuous Disclosures?
There is no set formula for a clear and conspicuous disclosure; it depends on the
information that must be provided and the nature of the advertisement. Some disclosures are
quite short, while others are more detailed. Some ads use only text, while others use graphics,
video, or audio, or combinations thereof. Advertisers have the flexibility to be creative in
designing their ads, as long as necessary information is communicated effectively and the
overall message conveyed to consumers is not misleading.
To evaluate whether a particular disclosure is clear and conspicuous, 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 sufficient duration; and
• whether the language of the disclosure is understandable to the intended audience.
If there are indications that a significant proportion of reasonable consumers are not
noticing or comprehending a necessary disclosure, the disclosure should be improved.
The following discussion uses these traditional factors to evaluate whether disclosures
are likely to be clear and conspicuous in the context of online ads. Hyperlinks labeled as

Examples in the text link to mock ads in the appendix. Each mock ad presents a scenario to
illustrate one or more particular factors. Advertisers must consider all of the factors, however,
and evaluate an actual disclosure in the context of the ad as a whole.

1. Proximity and Placement
A disclosure is more effective if it is placed near the claim it qualifies or other relevant
information. Proximity increases the likelihood that consumers will see the disclosure and
relate it to the relevant claim or product. For print ads, an advertiser might measure proximity
in terms of whether the disclosure is placed adjacent to the claim, or whether it is separated
from the claim by text or graphics. The same approach can be used for online ads. 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.

a. Evaluating Proximity
A disclosure is more likely to be effective if consumers view the disclosure and the claim
that raises the need for disclosure (often referred to as a “triggering claim”) together on the
same screen. Example 1 Even if a disclosure is not tied to a particular word or phrase, it is
more likely that consumers will notice it if it is placed next to the information, product, or service
to which it relates.
Often, disclosures consist of a word or phrase that may be easily incorporated into
the text, along with the claim. Doing so increases the likelihood that consumers will see the
disclosure and relate it to the relevant claim.
In some circumstances, it may be difficult to ensure that a disclosure appears on the
“same screen” as a claim or product information. Some disclosures are long and thus difficult
to place next to the claims they qualify. In addition, computers, tablets, smartphones, and
other connected devices have varying screen sizes that display ads and websites differently.
In these situations, an advertiser might place a disclosure where consumers might have
to scroll to reach it. 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. An explicit instruction like
“see below for important information on restocking fees” will alert consumers to scroll and look
for the information. The text prompt should be tied to the disclosure to which it refers. General
or vague statements, such as “details below,” provide no indication about the subject matter or
importance of the information that consumers will find and are not adequate cues.
The visual design of the page also could help alert consumers to the availability of more
information. For example, text that clearly continues below the screen, whether spread over
an entire page or in a column, would indicate that the reader needs to scroll for additional
information. Advertisers should consider how the page is displayed when viewed on different
devices.
Scroll bars along the edges of a screen are not a sufficiently effective visual cue.
Although the scroll bars may indicate to some consumers that they have not reached
the bottom or sides of a page, many consumers may not look at the scroll bar and some
consumers access the Internet with devices that don’t display a scroll bar.
The design of some pages might indicate that there is no more information following
and, therefore, no need to continue scrolling. If the text ends before the bottom of the screen
or readers see an expanse of blank space, they may stop scrolling and miss the disclosure.
Example 2 They will also likely stop scrolling when they see the information and types of
links that normally signify the bottom of a webpage, e.g., “contact us,” “terms and conditions,”
“privacy policy,” and “copyright.” In addition, if there is a lot of unrelated information — either
words or graphics — separating a claim and a disclosure, even a consumer who is prompted
to scroll might miss the disclosure or not relate it to a distant claim they’ve already read.
If scrolling is necessary to view a disclosure, then, ideally, the disclosure should be
unavoidable — consumers should not be able to proceed further with a transaction, e.g., click
forward, without scrolling through the disclosure. Making a disclosure unavoidable increases
the likelihood that consumers will see it.

Because of their small screens, smartphones (and some tablets) potentially require
horizontal, as well as vertical, scrolling. Placing a disclosure in a different column of a
webpage from the claim it modifies could make it unlikely that consumers who have to zoom
in to read the claim on a small screen will scroll right or left to a different column and read the
disclosure. Example 3 Optimizing a website for mobile devices will eliminate the need for
consumers to scroll right or left, although it will not necessarily address the need for vertical
scrolling.

b. Hyperlinking to a Disclosure
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.
Disclosures that are an integral part of a claim or inseparable from it should not be
communicated through a hyperlink. Instead, they should be placed on the same page
and immediately next to the claim, and be sufficiently prominent so that the claim and the
disclosure are read at the same time, without referring the consumer somewhere else to obtain
this important information. This is particularly true for cost information or certain health and
safety disclosures. Example 4 Indeed, required disclosures about serious health and safety
issues are unlikely to be effective when accessible only through a hyperlink. Similarly, if a
product’s basic cost (e.g., the cost of the item before taxes, shipping and handling, and any
other fees are added on) is advertised on one page, but there are significant additional fees the
consumer would not expect to incur in order to purchase the product or use it on an ongoing
basis, the existence and nature of those additional fees should be disclosed on the same page
and immediately adjacent to the cost claim, and with appropriate prominence.
However, if the details about the additional fees are too complex to describe adjacent to
the price claim, those details may be provided by using a hyperlink. Example 5 The hyperlink
should be clearly labeled to communicate the specific nature of the information to which it

leads, e.g., “Service plan required. Get service plan prices.” The hyperlink should appear
adjacent to the price. Moreover, because consumers should not have to click on hyperlinks to
understand the full amount they will pay, all cost information — including any such additional
fees — should be presented to them clearly and conspicuously prior to purchase.

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 screen; and
• the handling of the disclosure on the click-through page or screen.
Choosing the right label for the hyperlink. A hyperlink that leads to a disclosure
should be labeled clearly and conspicuously. The hyperlink’s label — the text or graphic
assigned to it — affects whether consumers actually click on it and see and read the
disclosure.
• Make it obvious. Consumers should be able to tell that they can click on a
hyperlink to get more information. Simply underlining text may be insufficient to
inform consumers that the text is a hyperlink. Using multiple methods of identifying
hyperlinks, such as both a different color from other text and underscoring, makes it
more likely that hyperlinks will be recognized.
• Label the link to convey the importance, nature, and relevance of the
information to which it leads. Example 6 The hyperlink should give consumers
a reason to click on it. That is, the label should make clear that the link is related to
a particular advertising claim or product and indicate the nature of the information
to be found by clicking on it. The hyperlink label should use clear, understandable
text. Although the label itself does not need to contain the complete disclosure,
it may be necessary to incorporate part of the disclosure to indicate the type and
importance of the information to which the link leads. On the other hand, in those
cases where seeing a hyperlinked disclosure is unavoidable if a consumer is going
to take any action with respect to a product or service — e.g., the product or service
can only be purchased online and the consumer must click on that link to proceed
to a transaction — the label of the hyperlink may be less important.
• Don’t hide the ball. Some text links provide no indication about why a claim
is qualified or the nature of the disclosure. Example 7 In many cases, simply
hyperlinking a single word or phrase in the text of an ad is not likely to be
effective. Although some consumers may understand that additional information is
available, they may have different ideas about the nature of the information and its
significance.
Hyperlinks that simply say “disclaimer,” “more information,” “details,” “terms
and conditions,” or “fine print” do not convey the importance, nature, and relevance
of the information to which they lead and are likely to be inadequate. Even labels
such as “important information” or “important limitations” may be inadequate.
Examples 8 & 9 Unfortunately, there is no one-size-fits-all word or phrase that can
be used as a hyperlink label, but more specificity will generally be better.
• Don’t be subtle. Symbols or icons by themselves are not likely to be effective as
hyperlink labels leading to disclosures that are necessary to prevent deception.xxiv
Example 10 A symbol or icon might not provide sufficient clues about why a claim
is qualified or the nature of the disclosure.xxv It is possible that consumers may
view a symbol as just another graphic on the page. Even if a website explains
that a particular symbol or icon is a hyperlink to important information, consumers
might miss the explanation, depending on where they enter the site and how they
navigate through it.
• Account for technological differences and limitations. Consider whether and
how your linking technique will work on the various programs and devices that could
be used to view your advertisement.

Using hyperlink styles consistently increases the likelihood that consumers
will know when a link is available. Although the text or graphics used to signal a hyperlink
may differ across websites and applications, treating hyperlinks inconsistently within a single
site or application can increase the chances that consumers will miss — or not click on — a

disclosure hyperlink. For example, if hyperlinks usually are underlined in a site, chances are
consumers wouldn’t recognize italicized text as being a link, and could miss the disclosure.
Placing the link near relevant information and making it noticeable. The hyperlink
should be proximate to the claim that triggers the disclosure so consumers can notice it
easily and relate it to the claim. Examples 11 & 12 Typically, this means that the hyperlink is
adjacent to the triggering term or other relevant information. Consumers may miss disclosure
hyperlinks that are separated from the relevant claim by text, graphics, blank space, or
intervening hyperlinks, especially on devices with small screens. Format, color, or other
graphics treatment also can help to ensure that consumers notice the link. (See below for
more information on prominence.)
Getting to the disclosure on the click-through should be easy. The click-through
page or screen — that is, the page or screen the hyperlink leads to — must contain the
complete disclosure and that disclosure must be displayed prominently. Distracting visual
factors, extraneous information, and opportunities to “click” elsewhere before viewing the
disclosure can obscure an otherwise adequate disclaimer.

•    Get consumers to the message quickly. The hyperlink should take consumers
directly to the disclosure. They shouldn’t have to search a click-through page or
go to other places for the information. In addition, the disclosure should be easy to
understand.
• Pay attention to indicia that hyperlinked disclosures are not effective.
Although advertisers are not required to use them, some available tools may
indicate to advertisers that their disclosures accessed through hyperlinks are not
effective. For example, advertisers can monitor click-through rates, i.e., how often
consumers click on a hyperlink and view the click-through information. Advertisers
also can evaluate the amount of time visitors spend on a certain page, which may
indicate whether consumers are reading the disclosure.
• Don’t ignore your data. If hyperlinks are not followed, another method of
conveying the required information would be necessary.
c. Using High Tech Methods for Proximity and Placement
Disclosures may be displayed on websites or in applications in many ways. For
example, a disclosure may be placed in a frame that remains constant even as the consumer
scrolls down the page or navigates through another part of the site or application. A disclosure
also might be displayed in a window that pops up or on interstitial pages that appear while
another webpage is loading. New techniques for displaying information are being developed
all the time. But there are special considerations for evaluating whether a technique is
appropriate for providing required disclosures.
• Don’t ignore technological limitations. Some browsers or devices may not
support certain techniques for displaying disclosures or may display them in a
manner that makes them difficult to read. For example, a disclosure that requires
Adobe Flash Player will not be displayed on certain mobile devices.
• Don’t use blockable pop-up disclosures. Advertisers should not disclose
necessary information through the use of pop-ups that could be prevented from
appearing by pop-up blocking software.
• Be aware of other issues with pop-up disclosures. Even the use of unblockable
pop-ups to disclose necessary information may be problematic. Some consumers
may not read information in pop-up windows or interstitials because they
immediately close the pop-ups or move to the next page in pursuit of completing
their intended tasks, or because they don’t associate information in a pop-up
window or on an interstitial page to a claim or product they haven’t encountered yet.

However, advertisers can take steps to avoid such problems, e.g., by requiring the
consumer to take some afbusinessative action to proceed past the pop-up or interstitial
(for example, by requiring consumers to choose between “yes” and “no” buttons
without use of preselected buttons before continuing). Research may be useful to
help advertisers determine whether a particular technique is an effective method of
communicating information to consumers.
d. Displaying Disclosures Prior to Purchase
Disclosures must be effectively communicated to consumers before they make a
purchase or incur a financial obligation. In general, disclosures are more likely to be effective
if they are provided in the context of the ad, when the consumer is considering the purchase.
Different considerations apply, however, in different situations. Where advertising and selling
are combined on a website or mobile application — that is, the consumer will be completing
the transaction online — disclosures should be provided before the consumer makes the
decision to buy, e.g., before clicking on an “order now” button or a link that says “add to
shopping cart.”

• Don’t focus only on the order screen. Some disclosures must be made in
conjunction with the relevant claim or product. Consumers may not relate a
disclosure on the order screen to information they viewed much earlier. It also is
possible that after surfing a company’s website, some consumers may decide to
purchase the product from the company’s brick and mortar store. Those consumers
would miss any disclosures placed only on the ordering screen. So that these
consumers do not miss a necessary disclosure, it may have to be on the same
page as the claim it qualifies.

When a product advertised online can be purchased from brick and mortar stores or
from online retailers other than the advertiser itself, necessary disclosures should be made
in the ad before consumers go to other outlets to make their purchase.  An
in-store disclosure or one placed on an unrelated online retailer’s website is unlikely to cure an
otherwise deceptive advertisement.
e. Evaluating Proximity in Space-Constrained Ads
Many space-constrained ads displayed today are teasers. Because of their small
size and/or short length, space-constrained ads, such as banner ads and tweets, generally
do not provide very much information about a product or service. Often, consumers must
click through to the website to get more information and learn the terms of an offer. If a
space-constrained ad contains a claim that requires qualification, the advertiser disseminating
it is not exempt from disclosure requirements.
• Disclose required information in the space-constrained ad itself or clearly
and conspicuously on the website to which it links. In some cases, a required
disclosure can easily be incorporated into a space-constrained ad. Example 15
In other instances, the disclosures may be too detailed to be disclosed effectively
in the ad itself. These disclosures may sometimes be communicated effectively
to consumers if they are made clearly and conspicuously on the website to which
the ad links. In determining whether the disclosure should be placed in the
space-constrained ad itself or on the website to which the ad links, advertisers
should consider how important the information is to prevent deception, how much
information needs to be disclosed, the burden of disclosing it in the ad itself, how
much information the consumer may absorb from the ad, and how effective the
disclosure would be if it were made on the website. If a product promoted in a
space-constrained ad can be bought in a brick and mortar store, consumers who do
not click through to a linked website would miss any disclosure that was not in the
space-constrained ad itself. If the disclosure needs to be in the ad itself but it does
not fit, the ad should be modified so it does not require such a disclosure or, if that
is not possible, that space-constrained ad should not be used.
• Use creativity to incorporate or flag required information. Scrolling text or
rotating panels in a banner ad can present an abbreviated version of a required
disclosure that indicates additional important information and a more complete
disclosure are available on the click-through page.
• Use disclosures in each ad. If a disclosure is required in a space-constrained ad,
such as a tweet, the disclosure should be in each and every ad that would require
a disclosure if that ad were viewed in isolation. Do not assume that consumers will
see and associate multiple space-constrained advertisements. Example 16
• Short-form disclosures might or might not adequately inform consumers of
the essence of a required disclosure. For example, “Ad:” at the beginning of a
tweet or similar short-form message should inform consumers that the message
is an advertisement, and the word “Sponsored” likely informs consumers that
the message was sponsored by an advertiser. Other abbreviations or icons may
or may not be adequate, depending on whether they are presented clearly and
conspicuously, and whether consumers understand their meaning so they are not
misled.xxvii Example 17 Misleading a significant minority of reasonable consumers is
a violation of the FTC Act.xxviii
• Maintaining disclosures with republication. Advertisers should employ
best practices to make it less likely that disclosures will be deleted from space-
constrained ads when they are republished by others. Some disclosures can be
placed at the beginning of a short-form message. Alternatively, if a disclosure is
placed at the end of a message, the original message can be written with enough
free space that the disclosure is not lost if the message is republished with a
comment by others.
• Disclosures on the click-through. In some instances — e.g., when a teaser ad
does not actually identify the product being advertised, so the consumer must click
through to learn its identity, or when the advertised product is sold only through
the advertiser’s own website and the consumer must click through in order to
take any action — a space-constrained ad can direct consumers to a website
for more information if a detailed disclosure is necessary but will not fit in the
space-constrained ad. The full disclosure must then be clearly and conspicuously
displayed on the website.
• Providing required disclosures in interactive ads. If consumers can purchase
a product within an interactive ad, all required disclosures should be included in the
ad itself.
2. Prominence
It is the advertiser’s responsibility to draw attention to the required disclosures.
Display disclosures prominently so they are noticeable to consumers. The size,
color, and graphics of the disclosure affect its prominence.

• Size Matters. Disclosures that are at least as large as the claim to which they
relate are more likely to be effective.
• Color Counts. A disclosure in a color that contrasts with the background
emphasizes the text of the disclosure and makes it more noticeable. Information
in a color that blends in with the background of the ad is likely to be missed.
Example 18
• Graphics Help. Although using graphics to display a disclosure is not required,
they may make the disclosure more prominent.
Evaluate the size, color, and graphics of the disclosure in relation to other parts
of the website, email or text message, or application.xxix The size of a disclosure should be
compared to the type size of the claim and other text on the screen. If a claim uses a particular
color or graphic treatment, the disclosure can be formatted the same way to help ensure that
consumers who see the claim are also able to see the disclosure and relate it back to the claim
it modifies. In addition, the graphic treatment of the disclosure may be evaluated in relation to
how graphics are used to convey other items in the ad.

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,xxx advertisers should design the website so
that any necessary disclosures are clear and conspicuous, regardless of the device on which
they are displayed. Example 19 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.
Don’t bury it. The prominence of the disclosure also may be affected by other factors.
A disclosure that is buried in a long paragraph of unrelated text will not be effective. The
unrelated text detracts from the message and makes it unlikely that a consumer would notice
the disclosure or recognize its importance. Even though the unrelated information may be
useful, advertisers must ensure that the disclosure is communicated effectively. For example,
it is highly unlikely that consumers will read disclosures buried in “terms of use” and similar
lengthy agreements. Even if such agreements may be sufficient for contractual or other
purposes, disclosures that are necessary to prevent deception or unfairness should not be
relegated to them. Similarly, simply because consumers click that they “agree” to a term or
condition, does not make the disclosure clear and conspicuous.
A disclosure that addresses a subject other than the primary subject of the ad.
Consumers who are trying to complete a task and obtain a specific product or service may
not pay adequate attention to a disclosure that does not relate to the task at hand. This can
be problematic if, for example, an advertiser is selling a product or service together with a
negative option trial for a different product or service. In these circumstances, even a relatively
prominent disclosure about the negative option trial could be missed by consumers because
this additional product or service is not their primary focus. One way to increase the likelihood
that consumers have actually read and understood a disclosure in such circumstances is
to require consumers to afbusinessatively acknowledge having seen the disclosure by choosing
between multiple answer options, none of which is preselected. Any such afbusinessative
acknowledgement should be displayed early in the decision-making process, e.g., before the
primary item is actually added to a shopping cart. Example 20
3. Distracting Factors in Ads

The clear and conspicuous analysis does not focus only on the disclosure itself. It also
is important to consider the entire ad. Elements like graphics, sound, text, links that lead to
other screens or sites, or “add to cart” buttons may result in consumers not noticing, reading,
or listening to the disclosure.

• Don’t let other parts of an ad get in the way. On television, moving visuals
behind a text message make the text hard to read and may distract consumers’
attention from the message. Using graphics online raises similar concerns:
flashing images or animated graphics may reduce the prominence of a disclosure.
Graphics on a webpage alone may not undermine the effectiveness of a disclosure.
It is important, however, to consider all the elements in the ad, not just the text of
the disclosure.

4. Repetition

It may be necessary to disclose information more than once to convey a non-deceptive
message. Repeating a disclosure makes it more likely that a consumer will notice and
understand it, and will also increase the likelihood that it will be seen by consumers who may
be entering the website at different points. Still, the disclosure need not be repeated so often
that consumers would ignore it or it would clutter the ad.

• Repeat disclosures on lengthy sites and applications, as needed. Consumers
can access and navigate websites or applications in different ways. Many
consumers may access a site through its home page, but others might enter in the
middle, perhaps by linking to that page from a search engine or another website.
Consumers also might not click on every page of the site and might not choose to
scroll to the bottom of each page. And many may not read every word on every
page of a website. As a result, advertisers should consider whether consumers
who see only a portion of their ad are likely to be misled because they will either
miss a necessary disclosure or not understand its relationship to the claim it
modifies.
• Repeat disclosures with repeated claims, as needed. If claims requiring
qualification are repeated throughout an ad, it may be necessary to repeat the
disclosure, too. In some situations, the disclosure itself is so integral to the claim
that it must always accompany the claim to prevent deception. In other instances, a
clearly-labeled hyperlink could be repeated on each page where the claim appears,
so that the full disclosure would be placed on only one page of the site.

5. Multimedia Messages and Campaigns

Online ads may contain or consist of audio messages, videos, animated segments, or
augmented reality experiences (interactive computer-generated experiences) with claims that
require qualification. As with radio and television ads, the disclosure should accompany the
claim. In evaluating whether disclosures in these multimedia portions of online ads are clear
and conspicuous, advertisers should evaluate all of the factors discussed in this guidance
document, as well as these special considerations:

• For audio claims, use audio disclosures. The disclosure should be in a volume
and cadence sufficient for a reasonable consumer to hear and understand it. The
volume of the disclosure can be evaluated in relation to the rest of the message,
and in particular, the claim. Of course, consumers who do not have speakers,
appropriate software, or devices with audio capabilities or who have their sound
turned off will not hear either the claim or the disclosure.
• For written claims, use written disclosures. Disclosures triggered by a claim
or other information in an ad’s written text should be made in writing, and not be
placed solely in an audio or video clip. Consumers who do not have speakers,
appropriate software, or devices with audio capabilities or who have their sound
turned off will not hear an audio disclosure; similarly, consumers might not be able
to view a video clip on some devices or simply might not choose to watch it.
• Display visual disclosures for a sufficient duration. Visual disclosures
presented in video clips or other dynamic portions of online ads should appear for
a duration sufficient for consumers to notice, read, and understand them. As with
brief video superscripts in television ads, fleeting online disclosures are not likely to
be effective.

Advertisers should also recognize that consumers today may be viewing their messages
through multiple media (e.g., watching television, surfing the web on a computer, viewing
space constrained messages on a smartphone, etc.). This multiple media access does not
alter the requirement that required disclosures be made clearly and conspicuously in each
advertisement that would require a disclosure if viewed in isolation.

6. Understandable Language

For disclosures to be effective, consumers must be able to understand them.
Advertisers should use clear language and syntax and avoid legalese or technical jargon.
Disclosures should be as simple and straightforward as possible. Icons and abbreviations are
not adequate to prevent a claim from being misleading if a significant minority of consumers do
not understand their meaning.xxxi Incorporating extraneous material into the disclosure also may
diminish communication of the message to consumers.

IV. Conclusion

Although online commerce (including mobile and social media marketing) is booming,
deception can dampen consumer confidence in the online marketplace. To ensure that
products and services are described truthfully online and that consumers get what they pay for,
the FTC will continue to enforce its consumer protection laws. Most of the general principles
of advertising law apply to online ads, but new issues arise almost as fast as technology
develops. The FTC will continue to evaluate online advertising, using traditional criteria, while
recognizing the challenges that may be presented by future innovation. Businesses, as well,
should consider these criteria when developing online ads and ensuring they comply with the
law.

*******

Here’s a link to the FTC’s online advertising disclosures guide (PDF file) including the footnotes and an appendix with examples containing photos. Of course, discuss any legal questions you have with your Internet lawyer.

 

 

Author Mike Young, Esq.

Internet Lawyer Mike Young provides contracts and other efficient legal solutions to business owners and C-level executives of privately held companies. To get legal advice from Mike, click here to set up your phone consultation with him.

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