FTC Seeks Industry Comments on Modernizing Its “.com Disclosures” Guidelines | Hogan Lovells


The FTC is seeking industry feedback on potential revisions to its 2013 .com Disclosure Guidelines on Digital Advertising and Marketing.

The FTC is seeking public comment on potential revisions to its 2013 guidelines for digital advertising and marketing, titled “.com Disclosures: How to Make Effective Disclosures in Digital Advertising.” 1 The guide offers suggestions and advice for businesses related to digital advertising and marketing. The deadline for submitting comments is August 2, 2022. 2 Prior to issuing revised guidance, the Request for Comments itself provides valuable insight into the FTC’s direction, and potential enforcement priorities, with respect to material information disclosure in the context of new digital media. and other emerging media. As emerging technologies and trends in social media create new complexities for advertisers, the Threshold Principle that material information must be adequately disclosed in all advertisements remains well established.

In its press release, the FTC highlighted its growing concern that some companies are misusing the guides to justify practices that mislead consumers. For example, the agency noted that some companies have attempted to claim they can avoid liability under FTC law by hiding or burying disclosures in hyperlinks, a practice that can be harmful to consumers. Additionally, the agency is seeking to eliminate portions of the guidance that are no longer relevant and update the guidance to better protect customers navigating the modern digital marketplace. The project is one of several FTC initiatives recently undertaken by the agency to combat dark schemes and deceptive digital practices.

The RFI identifies several issues on which the agency is seeking public input, including the following:

  • The use of sponsored and promoted advertisements on social media platforms;
  • Targeted and integrated forms of advertising, including virtual reality and micro-targeted advertisements;
  • Whether the current guidelines are sufficient to deal with ads on mobile devices;
  • Whether additional guidance is needed to reflect multi-party sales agreements involving e-commerce;
  • How guidance on the use of hyperlinks can be updated to better protect consumers; and
  • The adequacy of online disclosures when consumers need to browse multiple web pages.

The complete list of questions for comments in the RFI can be found in Appendix 1 below.

Next steps

Proactive companies will view the topics identified by the FTC as an opportunity to review their existing and new advertising policies. Advertisers will be well served by not waiting for the FTC to issue new guidelines. The .com Disclosures Guidelines are dated and the updated guidelines will be informative, but the underlying principles will likely remain unchanged.

Annex 1

List of questions for FTC comments

FTC staff request information regarding release of digital advertising trade guidelines (FTC-2022-0035-0001)

  1. 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 pattern techniques dark in digital advertising, should be addressed in a revised guidance document? Why and how to treat them?
  2. What issues raised by new laws or regulations should be addressed in a revised guidance document? Why and how to treat them?
  3. 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?
  4. What research or other information regarding the effectiveness of disclosures – and, in particular, online disclosures – should staff consider?
  5. 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?
  6. What guidance in the .com Disclosures document is obsolete or unnecessary?
  7. What orientations should be clarified, broadened, strengthened or limited?
  8. 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?
  9. 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?
  10. The guidelines state that when designing space-limited 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?
  11. Do the boards adequately address advertising on mobile devices? If not, how should the guidelines be changed?
  12. 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?
  13. 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 arrangements? If so, how should the guidelines be changed?
  14. 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?
  15. What additional issues or principles relating to online advertising should be addressed in the guidance document?
  16. What other changes, if any, should be made to the guidance document?

1 Press Release, FTC, FTC Seeks to Modernize its Guidelines on Preventing Digital Deception (June 3, 2022)

2 Comments may be submitted on Regulations.gov under File FTC-2022-0035: FTC, Digital Advertising Business Guidance Request for Information (June 3, 2022)

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