Pattishall IP Blog

April 25, 2013

The FTC Issues Revised Guidance for Mobile Device and Social Media Advertising Claims

Filed under: Advertising, Social Media — Tags: , , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 3:33 pm

PB LRby Phillip Barengolts, Partner

On March 12, 2013, the Federal Trade Commission issued revisions to its digital advertising guidelines, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the “Guides”).[1]  The Guides do not break new ground, but they provide advertisers with valuable examples of compliant disclosures that qualify advertising claims appearing on mobile devices, on social media such as Twitter and Facebook, and through any other non-traditional platform.

The Guides highlight the FTC’s fundamental belief about advertising claims: the medium does not matter; the advertising claim must be true and not misleading from the viewpoint of a reasonable consumer or else it violates Section 5 of the FTC Act.[2]

Disclosures that qualify an advertising claim must be clear and conspicuous – which can be difficult when dealing with social media or mobile devices due to space constraints.  The FTC’s revised Guides helpfully explain that an advertiser must place a disclosure as close as possible to the qualified claim and must communicate the disclosure in a manner that a consumer is likely to notice and understand.

What if a platform does not provide an opportunity for an adequate disclosure (e.g., Twitter)?  The FTC is clear: don’t use the platform or modify the claim for that platform so that a disclosure is unnecessary.  The Guides do have some detailed suggestions, including:

  • If a consumer has to scroll to view a disclosure, then the disclosure should be unavoidable;
  • Linking to the text of a disclose is permissible, but not if the disclosure is integral to the claim or inseparable from it;
  • Don’t use pop-ups because many browsers block them and most users ignore them;
  • Disclosures should be made before a user clicks “add to cart” or “order now”;
  • If the advertised product is available through outlets other than the advertiser, for example, at an online or brick-and-mortar retailer, the disclosure must be in the ad itself; and
  • for Tweets, the advertiser should use clear terms such as “Ad” or “Sponsored” at the beginning of the Tweet.

The most useful part of the Guides for advertisers are the many examples of compliant and non-compliant disclosures.  Just to highlight a few:

  • the advertiser should optimize its website for mobile devices to ensure that users zooming on a phone will not miss a disclosure;
  • hyperlink disclosures should be right next to the claim they modify (if they can be used at all); and
  • Tweets should include the necessary disclosure not link to it.

Advertisers must be aware of the impact of their claims, intentional or unintentional, and use proper disclosures – suitable to every platform on which the claim will be seen by a consumer –  to qualify any potentially misleading claims.  The Guides provide the FTC’s position on the adequacy of a disclosure to avoid enforcement action.  Of course, advertisers should consult their advertising review counsel to ensure compliance with the Guides and other advertising rules and regulations.

*     *     *

Phillip Barengolts is a partner with Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, a leading intellectual property law firm based in Chicago, Illinois.  Pattishall McAuliffe represents both plaintiffs and defendants in trademark, copyright, false advertising and unfair competition litigation, trials and appeals, and advises its clients on a broad range of domestic and international intellectual property matters, including brand protection, Internet, and e-commerce issues.  Mr. Barengolts’ practice focuses on litigation, transactions, and counseling in domestic and international trademark, trade dress, Internet, advertising and copyright law.  He teaches trademark and copyright litigation at John Marshall Law School, and co-authored Trademark and Copyright Litigation: Forms and Analysis, published by Oxford University Press.


[1] The entire 53-page Guidelines can be found here: http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf.

[2] It should be noted that the Guides, like all other FTC guide, are not laws, but if a company fails to comply, the FTC “might bring an enforcement action alleging an unfair or deceptive practice.”

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October 8, 2010

FTC Issues First Proposed Revision to Green Guides Since 1998

Filed under: Advertising — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 4:44 pm

by Phillip Barengolts, Esq.

Use of environmental claims in promotions and advertising has greatly expanded in recent years.  Inaccurate or unsupported claims can result in an action by the Federal Trade Commission (“FTC”), an objection before the National Advertising Division of the Better Business Bureau or the filing of a federal lawsuit for false advertising under the Lanham Act by a competitor.  Such lawsuits have become more common as environmental claims play a greater role in consumer perception of products.[1]

To address the expanding role of environmental claims, the FTC has proposed revisions to its Guides for the Use of Environmental Marketing Claims,[2] referred to as the “Green Guides,” for the first time since 1998 (the “Proposed Revisions”).  The Proposed Revisions are available on the FTC web site: http://www.ftc.gov/os/fedreg/2010/october/101006greenguidesfrn.pdf.  Comments on the Proposed Revisions will be accepted through December 10, 2010.  Below is a brief summary of the main proposals by the FTC. (more…)

October 7, 2009

FTC Announces Revised Guides on the Use of Endorsement and Testimonials in Advertising

Filed under: Advertising — Tags: , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 9:54 pm

By Alexis Payne Esq.

On October 5, 2009, the Federal Trade Commission (FTC) announced changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Guides”) that will take effect on December 1, 2009.  Under the revised Guides, advertisements that depict consumer experiences that are atypical will be required to conspicuously disclose the actual expected results.  The precursor to the Guides, in contrast, allowed advertisers to discuss atypical results as long as a disclaimer (such as “results not typical”) was included in the advertisement.

The Guides also require the disclosure of  “material connections” between advertisers and endorsers, including in blogging and “word-of-mouth” contexts.  For example, if a blogger is paid to endorse a product on his or her blog, that material connection must be disclosed in the endorsement. (more…)

May 20, 2009

FTC to Study How Consumers See "Green" Marketing

Filed under: Advertising — Tags: , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 5:36 pm

Lexy Payne, trademark attorney, outlines the FTCs Study on How Consumers See “Green” Marketing.

On May 12, 2009, the Federal Trade Commission (“FTC”) announced plans to conduct a study on consumer perception of environmental advertising claims (74 Fed. Reg. 22395-22399) in connection with its review of the Guides for the Use of Environmental Marketing Claims, 16 C.F.R. § 260.1, et seq. (“Green Guides”). The FTC’s Green Guides represent interpretations of laws administered by the FTC. Further, the Green Guides specifically address environmental advertising and marketing practices and provide the basis for voluntary compliance with such laws by industry members. Specifically, the Green Guides provide guidance on making claims such as biodegradable, compostable, recyclable, recycled content, and ozone safe, while discouraging broad, unqualified environmental claims, such “eco-friendly.”

The FTC’s anticipated study was likely prompted by the increased use of environmental marketing and its effect on the consuming public. It is expected that the FTC will use this opportunity to evaluate and implement more stringent guidelines for “green” marketing campaigns. This development serves as a reminder that legal clearance for environmental claims is integral as the FTC’s scrutiny of such claims is expected to increase. The FTC will accept public comment on the proposed study through June 11, 2009.

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