McAfee & Taft tIPsheet - June 2013: Short attention spans

by McAfee & Taft

LIKE IT? TWEET IT? PIN IT? Online advertising is becoming more critical to marketing departments and brand owners everywhere. Using Facebook, Twitter, Pinterest and other social media avenues to promote brands is a seismic shift – much like the move to websites only a couple of decades ago. How you market may have changed, but what you can say hasn’t. Deceptive advertisements aren’t OK, whether they’re on the back of your favorite magazine or on your smartphone. This spring, the Federal Trade Commission (FTC) released new guidelines for advertising in these new platforms and formats.

The FTC’s regulations and guidelines are focused on making sure that the advertisements that bombard us every day are truthful. Now that we use more abbreviated media to advertise, it’s more of a challenge to balance communication so that it grabs a consumer’s attention but doesn’t mislead. The basic rule is that “if a disclosure is needed to prevent an online ad claim from being deceptive or unfair” then it must be clear and conspicuous. That can be tough when you’re limited to 140 characters or a tiny mobile device screen, but the FTC says that doesn’t matter – if you can’t make the clearly and conspicuously on a device or platform, then that device or platform shouldn’t be used.

Size isn’t all that matters. The nature of the limitations or disclosures may dictate how you make them when you’re advertising. There’s nothing inherently wrong with using a hyperlink or a pop-up to save space, but an advertiser should think about the nature of the product and the information that would appear in the hyperlink or pop-up. For instance, if you’re advertising a new drug, a hyperlink (that a consumer might ignore) isn’t the best place to disclose a dangerous side effect. In general, the FTC advises avoiding hyperlinks for any disclosures that involve product cost or certain health and safety issues. If you do use hyperlinks, they should be labeled as specifically as possible, and you should stop to think about how they’ll function on various programs and devices – will they be routinely blocked? If the ads are created specifically for mobile devices or using responsive design that automatically detects the kind of device the consumer is using to access the site, the content can be arranged so that the consumer doesn’t have to zoom in and out on a tiny screen where it might be easy to miss important information.

Advertisements should incorporate relevant limitations and qualifying information with the relevant claim, not in a separate disclosure that, let’s face it, no one would read anyway. The idea is that the information in the disclosure is something consumers need to make a decision about a purchase so they must be provided in some format that makes it hard to ignore them. Disclosures should appear “as close as possible” to the relevant claim, and must be made at some point before the consumer can add the item to his/her online shopping cart. If the online ad is directing a consumer to a brick and mortar establishment or another page of a website to make a purchase, the disclosure should be made online, but repeated IRL (in real life) or on the next page.

Many companies have addressed the technological difficulty of complying with guidelines that were designed for other types of media by using links to provide additional information (like limitations on an offer or details about the product). However, the new guidelines indicate that any notice to consumers that there are limitations should clearly indicate the nature of the limitations. So providing a link to additional information might still work if you need to save space, but instead of a link to “further details” or reference to fine print “details below” the new guidelines advise a more specific approach: “click here for restocking fees” or “see below for more information on restocking fees.”

A picture’s worth a thousand words, so as advertisers compress literal communication, they increase visual cues to direct customers to necessary information. For instance, advertisers who might have simply spelled out exactly what they wanted to say with words, now use visual designs (color, text style, animation) that direct a user to continue scrolling down on a page to get all information and hyperlinks that clearly convey the nature of the linked information. The FTC recommends that advertisers keep abreast of studies and information about click through rates, where and how often consumers look at screens, and other consumer behaviors that might impact whether or not a consumer is likely to see and absorb information about the product itself.

If you’re thinking there must be an easier way … you’re right. You only need a disclosure to keep an ad from being deceptive. So the best way to avoid advertising fraught with hyperlinks, pop-ups, and platform decisions? Just the facts.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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