• How to “.Com”ply with Disclosure Rules for Digital Advertising - Part 2: Tips for Businesses Advertising Online in the U.S.
  • May 17, 2013 | Authors: Catherine M. Samuel; Meghan Waters
  • Law Firm: McCarthy Tétrault LLP - Calgary Office
  • In Part 1 of this blog series on digital advertising, we canvassed the disclosure rules in light of the recent the U.S. Federal Trade Commission’s recent publication, “.com Disclosures, How to Make Effective Disclosures in Digital Advertising”. In Part 2 of this blog series, we will set out some tips and guidelines to assist businesses in complying with the disclosure rules and avoid falling afoul the FTC.

    Entities conducting business online in the U.S. ought to consider whether its advertising meets these guidelines:

    1. Prominent and Unavoidable: Disclosure should be at least as large as the related claim and should be in a colour that contrasts with the background. In some cases, graphics may help make the disclosure more prominent. Keep in mind that viewers will see the advertisement on a variety of devices, so websites should either be designed so that the disclosure is clear and conspicuous regardless of the type of device, or a mobile-specific website could be created.
    2. Free from distraction: Avoid flashing or animated graphics, colours, distracting sounds or texts, links that lead to other sites and “add to cart” buttons that prevent the viewer from noticing, reading or listening to the disclosure.
    3. Repeat important information: Long websites, or those that can be accessed through multiple points of entry may require the disclosure to be repeated to ensure that a viewer will see the disclosure, although disclosure should not be repeated so often that a viewer would see it as clutter and ignore it.
    4. Suitable volume or duration: Audio claims should be accompanied by audio disclosures, and a reasonable consumer should be able to hear and understand the message. Where a claim is made in writing, disclosure should not be placed solely in an audio or video clip because viewers may not have speakers, or have their sound turned off.
    5. In the appropriate language for the intended audience: Use plain language and syntax.
    6. Track the viewer: Use technology to track how consumers are viewing the disclosure. For example, when hyperlinks are used, the advertiser should monitor viewers’ click-through rate as a measure of the effectiveness of the disclosure. Also, keep abreast of research about where consumers do and do not look on the screen.
    7. Protect offline shoppers: When a product is also available for purchase at a “bricks and mortar” store, ensure that any required disclosure is included with the online ad - before the consumer heads to the shopping mall.
    8. Free products: Bloggers who receive products for free for the purposes of review must disclose that fact, and the disclosure should be made prior to any hyperlinks on the page that may lead the viewer away from the page without having first viewed the disclosure.