Disclosures that are required to prevent an ad from being misleading, to ensure that consumers receive material information about the terms of a transaction or to further public policy goals, must be clear and conspicuous. In evaluating whether disclosures are likely to be clear and conspicuous in online ads, advertisers should consider the placement of the disclosure in an ad and its proximity to the relevant claim. Additional considerations include: the prominence of the disclosure; whether items in other parts of the ad distract attention from the disclosure; whether the ad is so lengthy that the disclosure needs to be repeated; whether disclosures in audio messages are presented in an adequate volume and cadence and visual disclosures appear for a sufficient duration; and, whether the language of the disclosure is understandable to the intended audience.
To make a disclosure clear and conspicuous, advertisers should:
Place disclosures near, and when possible, on the same screen as the triggering claim.
Use text or visual cues to encourage consumers to scroll down a Web page when it is necessary to view a disclosure.
Prominently display disclosures so they are noticeable to consumers, and evaluate the size, color and graphic treatment of the disclosure in relation to other parts of the Web page.
Review the entire ad to ensure that other elements — text, graphics, hyperlinks or sound — do not distract consumers' attention from the disclosure.
Repeat disclosures, as needed, on lengthy Web sites and in connection with repeated claims.
Use audio disclosures when making audio claims, and present them in a volume and cadence so that consumers can hear and understand them.
Display visual disclosures for a duration sufficient for consumers to notice, read and understand them.
Use clear language and syntax so that consumers understand the disclosures.
Commission rules and guides that use specific terms — "written," "writing," "printed" or "direct mail" — are adaptable to new technologies.
Rules and guides that apply to written ads or printed materials also apply to visual text displayed on the Internet.
If a seller uses email to comply with Commission rule or guide notice requirements, the seller should ensure that consumers understand that they will receive such information by email and provide it in a form that consumers can retain.
"Direct mail" solicitations include email. If an email invites consumers to call the sender to purchase goods or services, that telephone call and subsequent sale must comply with the Telemarketing Sales Rule requirements.