When a disclosure is necessary to prevent an ad from being misleading, the disclosure must be presented in a "clear and conspicuous" manner. Exactly what that means depends a lot on the context, but in order to give the advertisers a framework of what to consider, the FTC published its .com Disclosure Guidelines. Last updated in 2013, the Guidelines encourage advertisers to consider things like where disclosures are placed, how prominent they are, and whether consumers are likely to see them.

Last week, the FTC announced that they are seeking public input on ways to modernize the Guides, and the tone of the press release suggests that more stringent requirements are on the way. Samuel Levine, Director of the FTC's Bureau of Consumer Protection, noted that "some companies are wrongly citing our current guides to justify dark patterns and other forms of digital deception," and that the FTC is looking to "make clear that online tricks and traps will not be tolerated."

Among other things, the FTC is seeking comments on:

  • the use of sponsored and promoted ads on social media;
  • ads that are embedded in games and virtual reality;
  • the "ubiquitous use of dark patterns, manipulative user interface designs used on websites and mobile apps, and in digital advertising that pose unique risks to consumers;"
  • whether the current guidance adequately addresses advertising on mobile devices;
  • whether additional guidance is needed to reflect the multi-party selling arrangements involved in online commerce and affiliate marketing arrangements;
  • how the guidance on the use of hyperlinks can be strengthened to better protect consumers; and
  • the adequacy of online disclosures when consumers must navigate multiple webpages.

As we noted earlier this week, the FTC has also provided details on the "clear and conspicuous" standard in their proposed updates to the Endorsement Guides.

Comments are due by August 2, 2022.

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