November 28, 2022

Volume XII, Number 332


FTC Taking Another Look at Online Disclosures

The FTC has announced that it is taking a fresh look at its guidance for online disclosures, in part because, according to its Consumer Protection Director, “some companies are wrongly citing the guides to justify practices that mislead consumers online.”

First issued in 2000 and then updated in 2013, the agency’s .com Disclosures guidance has long set benchmarks on incorporating relevant limitations and qualifying information in digital advertising. At bottom, the FTC has long emphasized that the same consumer protection laws that apply to commercial activities in other media also apply online, and that any disclosures required to prevent online ads from being misleading must be clear and conspicuous.

As new forms of consumer engagement emerge online, the FTC is seeking public input on how its guidance might be improved. Among the questions the agency raises are whether the FTC should address issues raised by:

  • Sponsored advertising on social media platforms;

  • The use of advertising content embedded in games; and

  • The use of dark pattern techniques in digital advertising.

The FTC also asks whether the guidance should be clarified to address:

  • The appropriate use of hyperlinks and how hyperlinks should be labeled;

  • How to make qualifying disclosures when consumers must navigate multiple webpages in order to complete a purchase;

  • Advertising on mobile devices;

  • Microtargeted advertising;

  • Issues relating to advertising in the metaverse and in virtual reality; and

  • Multi-party selling arrangements, such as marketplace platforms and affiliate advertising.

The FTC is taking comments on these questions through August 2, 2022.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 157

About this Author

Phyllis H. Marcus Partner Consumer Products Food Industry Retail Practices

With 17 years of experience at the FTC, Phyllis brings a unique advertising and children’s privacy vantage point to our clients.

Phyllis heads the firm’s advertising counseling practice, and focuses on all aspects of advertising, from the initial development of a claim to its ultimate defense in the marketplace. Phyllis’s practice includes claim creation and substantiation, pre-acquisition due diligence, dissemination in traditional and digital media, and both offensive and defensive competitor challenges. She also counsels clients on the intricacies of compliance with the Children’...