Whoomp! There it Is – Disclosures, Disclosures, Disclosures

www.ifrahlaw.com www.ifrahlaw.com

WHOOMP! THERE IT IS – DISCLOSURES, DISCLOSURES, DISCLOSURES

Affiliate Summit West 2016Rachel Hirsch, Esq., Senior Associate

P (202) 524-4145 /

http://www.ifrahlaw.com/


www.ifrahlaw.comP (202) 524-4145 /

DISCLOSURE: IF YOU HAVEN’T READ THE FTC GUIDELINES, YOU MIGHT AS WELL GIVE UP NOW.

Updates 2000 Guidance Known As Dot Com Disclosures

Takes Into Account Expanding Use of Smartphones With Small Screens And Rise of Social Media

Ensures That Disclosure is Clear and Conspicuous On All Devices And Platforms That Consumers May Use To View The Ad



DISCLOSURE: FAILURE TO FOLLOW FTC GUIDELINES MAY RESULT IN ENFORCEMENT.

OPERATION “FULL DISCLOSURE”



DISCLOSURE: FAILURE TO FOLLOW FTC GUIDELINES MAY RESULT IN ENFORCEMENT.

Failure To Disclose Pricing Conditions

Failure To Disclose Automatic Billing Feature

Claiming Product Capabilities Or Superiority Without Substantiation

Promoting “Risk-Free” or “Worry-Free” Trial Period Without Disclosing Additional Costs.

Making Broad Claims Without Limitations/Qualifications.



DISCLOSURE: IF YOU CAN’T SEE, HEAR, OR READ THIS DISCLOSURE IT DOESN’T COUNT.

Disclosures Must Be “Clear And Conspicuous” –

Consumers Must Be Able To:

REMEMBER! A Disclaimer Or Disclosure Alone Usually Not Enough To Remedy A False Or Deceptive Claim

Notice Read

Hear Understand




Placement and Proximity

Prominence

Unavoidability

Distracting Factors

Repetition

Duration of Disclosure

Understandability

Format and Language

REMEMBER! When Disclosures Cannot Be Made Clearly And Be Made, Forgo the Claim Altogether!




Advertisers Should Be Aware Of:

• Short Form And Abbreviated Disclosures

• Technological Limitations

• Proximity



DISCLOSURE: TWEETING IS NOT JUST FOR THE BIRDS.

CHALLENGE: Limited To 140 Characters

Disclosures: “Ad,” #Ad, “Sponsored,” #Sponsored

EXAMPLES: COLE HAAN Sponsored Tweets; Kim Kardashian



DISCLOSURE: THINK BEFORE YOU “LIKE.” - FACEBOOK

CHALLENGE: Space Is Not An Issue; It’s How To Utilize It To Rise To The Top Of Your Readers’ Feeds

TIP: Consider Whether You’re Getting Your Readers To Click The Affiliate/Sponsored Link Before Even Getting To the Disclosure. If so, Your Disclosure May Not Be Effective.



DISCLOSURE: THINK BEFORE YOU “LIKE.” - BLOGGERS

Bloggers Must Disclose Relationship/Material Connection With Advertiser.

Reasonable Monitoring Of Disclosures Is Required By Affiliates/Endorsers, But The Focus Will Ultimately Be On the Advertiser, Not Endorsers.

You Can’t Talk About Your Experience With A Product If You Have Not Tried It.

EXAMPLE: I Received A Free Baby Product From Brand X In Exchanging For Writing This Review.



DISCLOSURE: IF YOU DO NOT FEEL COMFORTABLE DISCLOSING AFFILIATE LINKS, YOU PROBABLY SHOULD NOT BE USING THEM.

EX: Affiliate Link: _______.

EX: This Post Contains Affiliate Links, Which Means I Receive __ If You Make a Purchase Using This Link.



DISCLOSURE: IF YOU ARE GOING TO BILL A CUSTOMER, MAKE SURE THE CUSTOMER ACTUALLY KNOWS ABOUT IT.

5 Guiding Principles For Negative Option Offers:

1. Use Understandable Language.2. Focus On Placement And Proximity.3. Disclose Terms Before Payment.4. Obtain Affirmative Consent.5. Honor Promised Cancellation Procedures.

REMEMBER! When It Comes To Negative Option Offers, Disclose, Disclose, And Then Disclose Again!



DISCLOSURE: THE KEY TO A GOOD DISCLOSURE IS KNOWING WHEN TO MAKE IT.

Always Ask Yourself: What Is the Overall Net Impression Of My Ad?


www.ifrahlaw.comwww.ifrahlaw.com

1717 Pennsylvania AvenueWashington, D.C. 20006

www.ifrahlaw.com

P (202) 524-4145 /

Email: [email protected]: TheRealMsHirsch

Blog: www.ftcbeat.com



Whoomp! There it Is – Disclosures, Disclosures, Disclosures

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