On June 3, 2022, the Federal Trade Commission announced it is seeking public comment on its 2013 guidance, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the “Guidance”). The FTC indicated that it is updating the Guidance to better protect consumers against online deceptive practices, particularly because some companies have interpreted the current version of Guidance to “justify practices that mislead consumers online.” For example, the FTC explains that companies have wrongfully claimed they can avoid FTC Act liability by placing required disclosures behind hyperlinks. The updated Guidance will address issues such as advertising on social media, in video games, in virtual reality environments, and on mobile devices and applications, as well as the use of dark patterns, manipulative user interface designs, multi-party selling arrangements, hyperlinks and online disclosures.
In its Request for Information, the FTC provided the following questions for public comment:
- “What issues raised by current or emerging online technologies, activities, or features, such as sponsored and promoted advertising on social media platforms or otherwise, the use of advertising content embedded in games, or the use of dark pattern techniques in digital advertising, should be addressed in a revised guidance document? Why and how should they be addressed?
- What issues raised by new laws or regulations should be addressed in a revised guidance document? Why and how should they be addressed?
- What research or other information regarding the online marketplace, online advertising techniques, consumer online behavior, or consumer mobile behavior should the staff consider in revising its online advertising guidance document?
- What research or other information regarding the effectiveness of disclosures – and, in particular, online disclosures – should the staff consider?
- What specific types of online disclosures, if any, raise unique issues that should be addressed in a revised guidance document separately from a discussion of general disclosure requirements?
- What guidance in the .com Disclosures document is outdated or unnecessary?
- What guidance should be clarified, expanded, 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?
- Does the guidance adequately address how to make qualifying disclosures when consumers must navigate multiple webpages in order to complete a purchase? If not, how should the guidance be modified?
- The guidance says that when designing space-constrained ads, ‘disclosures may sometimes be communicated effectively to consumers if they are made clearly and conspicuously on the website to which the ad links.’ Should that guidance be modified, and if so, how? Should the guidance document clarify when a disclosure on a marketer’s website can and cannot be sufficient to prevent a representation in an earlier communication that links to the website from being misleading?
- Does the guidance adequately address advertising on mobile devices? If not, how should the guidance be changed?
- Should the guidance document address issues unique to specific audiences or demographics in seeing, hearing, or comprehending disclosures? If so, how should the guidance be modified? Should any such guidance address microtargeted advertisements, and if so, how should it do so?
- Should the guidance document address issues that have arisen from multi-party selling arrangements in internet commerce such as (1) established online sellers providing a platform for other firms to market and sell their products online, (2) website operators being compensated for referring consumers to other internet sites that offer products and services, and (3) other affiliate marketing arrangements? If so, how should the guidance be modified?
- Should the guidance document address issues that have arisen with respect to advertising that appears in virtual reality or the metaverse, and, if so, how should those 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 can provide comments on these issues through August 2, 2022. Instructions on how to submit comments can be found in the FTC’s Request for Information.