FTC Digital Advertising Guidelines Open for Public Comment

On June 3, 2022, the Federal Trade Commission announced that it was seeking public comment on its 2013 guidelines, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the “Guidelines”). The FTC said it was updating the Guide to better protect consumers from deceptive practices online, particularly because some companies have interpreted the current version of the Guide to “justify practices that mislead consumers online.” . For example, the FTC explains that companies have falsely claimed that they can avoid liability under FTC law by placing required information behind hyperlinks. The updated Guide will cover issues such as advertising on social networks, in video games, in virtual reality environments and on mobile devices and applications, as well as the use of dark models, interface designs manipulative user, multi-party sales agreements, hyperlinks and online disclosures.

In its request for information, the FTC submitted the following questions for public comment:

  • “What issues arise from current or emerging online technologies, activities or features, such as sponsored and promoted advertising on social media platforms or otherwise, the use of in-game advertising content, or the use of dark pattern in digital advertising, should be addressed in a revised guidance document Why and how to address them?

  • What issues raised by new laws or regulations should be addressed in a revised guidance document? Why and how to treat them?

  • What research or other information regarding the online marketplace, online advertising techniques, online consumer behavior or mobile consumer behavior should staff consider when revising their guidance document on online advertising?

  • What research or other information regarding the effectiveness of disclosures – and, in particular, online disclosures – should staff consider?

  • What specific types of online disclosures, if any, raise unique issues that should be addressed in a revised guidance document separate from a discussion of general disclosure requirements?

  • What guidance in the .com Disclosures document is obsolete or unnecessary?

  • What orientations should be clarified, broadened, strengthened or limited?

  • How can the guidance on the use of hyperlinks be clarified to provide better guidance on the appropriate use of hyperlinks and how hyperlinks should be labeled?

  • Do the guidelines adequately explain how to make qualifying disclosures when consumers need to navigate multiple web pages to make a purchase? If not, how should the guidelines be changed?

  • The guidelines state that when designing space-restricted ads, “disclosures can sometimes be effectively communicated to consumers if they are made clearly and prominently on the website to which the ad links.” Should these guidelines be changed, and if so, how? Should the guidance document specify when a disclosure on a marketer’s website may and may not be sufficient to prevent a representation in a prior communication to the website from being misleading?

  • Do the boards adequately address advertising on mobile devices? If not, how should the guidelines be changed?

  • Should the guidance document address issues unique to specific audiences or demographics regarding seeing, hearing or understanding disclosures? If so, how should the guidelines be changed? Should such guidelines address micro-targeted ads, and if so, how should they do so?

  • Should the guidance document address issues that have arisen from multi-party sales agreements in internet commerce such as (1) established online sellers providing a platform for other businesses to market and sell their products online, (2) website operators being compensated for referring consumers to other websites offering products and services, and (3) other affiliate marketing agreements? If so, how should the guidelines be changed?

  • Should the guidance document address issues that have arisen with respect to advertising that appears in VR or the Metaverse, and, if so, how should these issues be addressed?

  • What additional issues or principles relating to online advertising should be addressed in the guidance document?

  • What other changes, if any, should be made to the guidance document? »

The public may provide comments on these matters until August 2, 2022. Instructions on how to submit comments can be found in the FTC’s Request for Information.

Copyright © 2022, Hunter Andrews Kurth LLP. All rights reserved.National Law Review, Volume XII, Number 167

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