The Federal Trade Commission (FTC) recently released its updated guidance for online advertising disclosures titled .com Disclosures: How to Make Effective Disclosures in Digital Advertising (the “2013 Guide”). The prior version of this guidance was issued in May 2000 (before Twitter, Facebook, Instagram and other platforms existed). The 2013 Guide provides instruction and examples with regard to how the established rules apply to disclosures in advertisements on social media platforms or on devices with varying screen sizes and functionality, such as banners and Tweets (referred to in the 2013 Guide as “space-constrained ads”).

As discussed in our first column—advertising claims, whether express or implied and regardless of whether in a newspaper, on television or online—must be truthful and not misleading, substantiated and fair. The same holds true in the social media context. When a disclosure is necessary to limit an advertising claim or avoid a misleading understanding of an advertising claim, that disclosure must be clear and conspicuous. Whether a disclosure is clear and conspicuous “is measured by its performance—that is, how consumers actually perceive and understand the disclosure within the context of the entire ad.” The 2013 Guide reinforces the concept that “[t]he key is the overall net impression of the ad—that is, whether the claims consumers take from the ad are truthful and substantiated,” viewed under the “reasonable consumer” standard.

The 2013 Guide highlights the factors to be evaluated when considering online disclosures, including (i) the placement and prominence of the disclosure; (ii) whether the disclosure is unavoidable; (iii) whether it addresses concerns about consumer distraction; (iv) whether the disclosure should or must be repeated; (v) whether the language used in the disclosure is understandable to the targeted audience; and (vi) other specific issues pertaining to audio and video advertisements (think YouTube and, soon, Facebook television-style commercials).