Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 53 52 / Venable Given the heightened level of scrutiny, anyone who markets online, including in mobile and social platforms, should review FTC guidance and evolving standards from the courts, and consider the following questions: • Can the required information be incorporated into the underlying claim instead of requiring a separate disclosure? • Where there is a material connection between your brand and endorsers/ influencers, is that connection adequately disclosed? (See “ Social Media, Influencers, and Endorsements ” section for more guidance.) • Are ads’ disclosures “clear and conspicuous” in terms of font size, wording, and proximity to the claim? Are they “unavoidable”? Do other parts of the web page distract attention from the disclosures? • Does the disclosure materially modify the message of the advertisement? The more the disclaimer or disclosure modifies the primary message, the more prominent and conspicuous the disclosure needs to be. • Is the disclosure readily viewable on a particular device or platform? • Is scrolling required to view the disclosure? Is horizontal scrolling, which could make the disclosure less prominent on smartphone screens, required? • Are there visual or other cues that direct consumers to the disclosure? • If you hyperlink to the disclosure, does the link label explicitly communicate the nature and the relevance of the information to which the link leads? • Is the disclosure made before the consumer “adds” the item to a shopping cart? • If, to avoid being deceptive, an ad or endorsement requires a disclosure, but that disclosure cannot be made clearly and conspicuously on a particular device or platform, consider whether it’s better not to make the claim in that medium. The Federal Trade Commission (FTC), state attorneys general, and class action lawyers continue to pay very close attention to the clarity and prominence of consumer-facing online disclosures. The clarity and conspicuousness of online disclosures are a constant source of government enforcement and private litigation, with regulatory agencies and federal and state courts opining (sometimes differently) about what constitutes an adequate online disclosure. Online Disclosures Roger A. Colaizzi rcolaizzi@Venable.com +1 202.344.8051 Leonard L. Gordon lgordon@Venable.com +1 212.370.6252