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In 2000, the FTC noticed that this whole "Dot Com" thing was getting pretty big. Online grocery stores were starting and stopping, Amazon had already launched, and consumers were increasingly turning to the Internet for product research, reviews, and shopping. Of course, the Internet frontier presented a number of novel questions regarding advertising. Did prior regulations, like those on television and print ads, apply?
This month, 11 years after the initial rules were released, the FTC updated the rules. Why? Social media. Disclaimers are difficult in 140 characters or less. (Yes, sponsored Tweets need disclaimers.) Mobile devices are creating space constraints that require a fresh approach as well.
In the end, the FTC regulations come down to common sense. If you were a consumer, what would it take for you to notice and understand the disclaimer? And would you click through multiple links just to find the information?
If you are a law blogger, whether as a supplement to your practice, or as a full-time gig, keep these requirements in mind before shaping that post based on a giveaway or freebie.
Clear and Conspicuous Disclosures
Pure common sense here. Don't write the disclosure in Sanskrit. Don't bury it in a link in tiny font on the bottom of the page. Don't place it next to a dancing gerbil animation that will distract the user.
Plain, clear, concise language, reasonably close to the advertisement, is all that is required.
Proximity and Placement
Another common sense proposition, the placement of the disclaimer should be where people actually will notice it. While your instincts might be to hide the disclaimer at the bottom of the page, the FTC is too smart for that. Instead, they suggest using empirical research to determine where consumers look on a page before deciding on placement.
Empirical research? Yeeesh, for blogging? Who has time for that?
Well, Yahoo does. And we sleep with the Yahoo! Style Guide under our pillows, so we'll do the work for you. Much like a book, consumers start on the top, left side (though below any headers or navigation). Yahoo has a "heat map" to show you where users' eyeballs looked most.
More mobile, more problems. Test your advertisements on all types of devices, from smartphones to desktop PCs, to ensure that the FTC disclaimers meet the above requirements. Unless you are using a limited medium (like a tweet), a link to the disclaimer is probably not sufficient.
Speaking of tweets, short social media ads should identify themselves as such, with a link to a disclaimer. For example: "AD: XYZ Company Releases New Version [More info/Disclaimer]"
In an ideal world for the FTC, all ads would have massive red font declaring "AD" before launching into a long disclaimer, all before the sponsored post itself. Their regulations are realistic, however. What they ask, and what is best for consumers, is that there is a disclaimer, it is reasonably clear, and it is reasonably noticeable.