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New FTC guidance: advertising in the smartphone age.

BANKS ARE USED TO DEALING WITH COMPLIANCE RESTRICTIONS WHEN ADVERTISING ON THE INTERNET, including how to place required disclosures on small Web pages, how to fit information on banner ads and so forth. But technologically, we're a step beyond that now. What standards must be followed to fit an ad on a tablet or smartphone screen? It's difficult to make text readable on these devices, so are there any exceptions when it comes to making things easier on the bifocal crowd?

The Federal Trade Commission (FTC) recently issued updated guidance titled, ".com Disclosures--How to Make Effective Disclosures in Digital Advertising" (available at Originally issued in 2000, the guidance (addressing all industries including banking) deals with these small screen issues, and also discusses social media marketing. There are a number of helpful examples pictured in the new guidance, as well.

The theme of the new guidance, as it was when originally written, is that "the same consumer protection laws that apply to commercial activities in other media apply online, including activities in the mobile marketplace," whether displayed on a desktop computer or mobile device. The principal consumer protection law at issue here is the prohibition against UDAP (Unfair or Deceptive Acts or Practices). To avoid UDAP, disclosures must be "clear and conspicuous" as well as "prominent."

How can this be accomplished?

* Disclosures must be Clear and conspicuous on all devices and platforms consumers may use to view the ad (including a small cell phone screen). Since Web browsers are standard issue on smartphones, any ad placed on your website can be viewed on a cell phone. Particular attention should be placed on disclosures that are necessary to prevent an online ad from being deceptive or unfair; don't make them impossibly small to read.

* Pay attention to where disclosures are placed within an ad, meaning their proximity to the main claim (i.e. triggering terms). The guidelines originally-defined proximity as "near, and when possible, on the same screen," and stated that advertisers should somehow "draw attention to" required disclosures. The updated guidance states that disclosures should be "as close as possible" to the relevant claim, which is a stricter standard. Requiring scrolling to find a disclosure is not recommended.

* Are required disclosures prominent enough to be noticed? Depending on the structure of the ad, do they appear for long enough to be read?

* While hyperlinks to required disclosures are permissible, they should labeled as specifically as possible. Carefully consider how hyperlinks will function (will they at all?) on various programs and devices. Pop-ups containing disclosures are discouraged since they are often blocked.

* Necessary disclosures should not be relegated to "terms of use" and similar agreements since these are often ignored.

* The FTC recommends monitoring research on where consumers look and do not look on a screen.

* Advertising on social media often means constraints on space (Twitter is an example). Disclosures still must be provided to prevent an ad from being deceptive.


CARL G. PRY, CRCM is a senior director for Treliant Risk Advisors in Washington, D.C., where he advises clients on a wide variety of compliance, fair lending, corporate treasury, and risk management issues, Email:
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Title Annotation:MARKETING COMPLIANCE; Federal Trade Commission
Author:Pry, Carl G.
Publication:ABA Bank Marketing
Geographic Code:1USA
Date:Jun 1, 2013
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