1. 2015 Venable LLP May 13, 2015 ERA Government Affairs Fly-In
Rich Cleland FTC Disclosures in a Broadcast, Mobile & Online
World Lee Peeler ASRC/ERSP Amy Mudge Venable Jennifer McCabe
Euro-Pro
2. Richard Cleland* Assistant Director Division of Advertising
Practices Federal Trade Commission Sensa/Iovate/Dannon/Nestle
Substantiation Gut Check Claims Endorsement and Testimonial Guides
Dot.Com Disclosures Operation Full Disclosure *The FTC is the only
federal agency with both consumer protection and competition
jurisdiction in broad sectors of the economy. The FTC pursues
vigorous and effective law enforcement; advances consumers
interests by sharing its expertise with federal and state
legislatures and U.S. and international government agencies;
develops policy and research tools through hearings, workshops, and
conferences; and creates practical and plain-language educational
programs for consumers and businesses in a global marketplace with
constantly changing technologies. My comments reflect my own views,
and do not necessarily reflect the views of the Commission or any
individual Commissioner. The FTCs work is performed by the Bureaus
of Consumer Protection, Competition and Economics. That work is
aided by the Office of General Counsel and seven regional
offices.
3. 2015 Venable LLP Lee Peeler* Council of Better Business
Bureaus Executive Vice President and President, Advertising
Self-Regulatory Council (ASRC) Disclosures and Supers Online
Disclosures Native Advertising Comparative Claims Puffery
Denigration *ASRC is a service of the advertising industry and the
Council of Better Business Bureaus. The National Advertising
Division is an investigative arm of the advertising industrys
self-regulatory system. NAD reviews advertising for truth and
accuracy and to assure that advertising claims are properly
supported. Advertising industry self- regulation is over 40 years
old and was put in place to promote high standards of truth and
accuracy. The self-regulatory system reviews the truth and accuracy
of advertising claims in all media, including social media;
examines the truth, accuracy, fairness and appropriateness of
advertising directed to children; reviews privacy practices of
websites directed to children, and enforces consumer choice and
transparency principles in online interest-based advertising. The
system is independent and administered by the Council of Better
Business Bureaus.
4. Please center image within this image area.
*Dramatization.Resultsdonotrepresentactualappearanceonatypicalday.ThankyouAdobePhotoshop!
Jennifer McCabe Executive Vice President, General Council and
Secretary to the Board of Directors of Euro- Pro Operating LLC
5. Please center image within this image area. *! Amy Ralph
Mudge No. 1 Highest Rated Advertising Lawyer 2010-2015* I have
never met nor even imagined there could be a more intelligent,
creative, kind, decent lawyer who wins every single case she ever
touches Venable LLP 202.344.4743 [email protected] Blog:
AllAboutAdvertisingLaw.com *Quotes and award by the Mudge family
grandparents, parents and children who were handsomely
compensated
8. 2015 Venable LLP Strivectin, NAD Case Reports #5826
(4/6/15)
9. Stihl Inc. (Handheld Power Tools) NAD Case Reports #5634
(9/24/13)
10. *per charge vs. AA 1350 mAh within the first 200 cycles.
The Procter & Gamble Company (Duracell Rechargable Batteries),
NAD Case Reports #5801 (1/13/15)
11. 2015 Venable LLP Morton Salt, Inc. (System Saver II Water
Softening Sea Pellets) NAD Case Reports #5573 (4/15/13)
12. 2015 Venable LLP
13. 2015 Venable LLP But Before We Had the Web
14. 2015 Venable LLP
15. 2015 Venable LLP
16. 2015 Venable LLP 1970s Guidance Disclosure should be
simultaneously in audio and video Immediately follow the specific
representation to which they relate Presented each time the
representation is presented Audio portion No other sounds or music
would be presented during the disclosure Video portion easily seen
and read on all television sets, regardless of picture tube size,
that are commercially available Readily contrast with the
background, and background should consist of only one color or
shade Appear on the screen for sufficient duration to be completely
read by viewer Disclosure should take into account the target
audience and substance of the disclosure should be such that it can
be understood by all those individuals that understand the sales
representation of the advertisement. If securing this understanding
is impractical, then . . . should not be used on television
17. 2015 Venable LLP
18. FTC DECEPTION POLICY STATEMENT Accurate information in the
text may not remedy a false headline because reasonable consumers
may glance only at the headline. Written disclosures or fine print
may be insufficient to correct a misleading representations. Other
practices of the company may direct consumers attention away from
the qualifying disclosures.
19. FTC DECEPTION POLICY STATEMENT Qualifying disclosures must
be legible and understandable. In evaluating such disclosures, the
Commission recognizes that in many circumstances, reasonable
consumers do not read the entirety of an ad or are directed away
from the importance of the qualifying phrase by the acts or
statements of the seller.
20. 2015 Venable LLP
21. 2015 Venable LLP
22. 2015 Venable LLP The 4Ps of Clear and Conspicuous
Disclosures Prominence Is it big enough for consumers to notice and
read? Presentation Is it worded in a way consumers will understand?
Placement Is it where consumers are likely to look? Proximity Is it
close to the claim it modifies?
23. 2015 Venable LLP Guidelines
24. 2015 Venable LLP
25. 2015 Venable LLP Bottom Line on All Disclosures Disclosures
must be presented clearly and conspicuously The FTCs clear and
conspicuous standard is a performance standard, and not a font size
or a minimum number of seconds Disclosures should be easily
noticeable, without consumers having to look for it Disclosures
should be close to the claims they relate to and not hidden or
buried in footnotes or in blocks of text people are not likely to
read Understand the limitations of a particular platform on which
an ad is disseminated and modify claims and disclosures accordingly
Analyze disclosures in same way you analyze whether a main claim is
meaningful and resonates with the target audience Disclosures can
only qualify or limit a claim to avoid a misleading impression; it
cannot cure a false claim 2015 Venable LLP
26. Not a case but just completely awesome
27. 2015 Venable LLP When Can a Disclosure Provide a Cure?
28. 2015 Venable LLP DirectTV, LLC (Picture, Sound, Signal
Reliability and Customer Service Advertising), NAD Case Reports
#5820 (3/25/15)
29. 2015 Venable LLP Smart for Life Weight Management Centers
(Smart for Life Cookies), ERSP Reports #242 (6/28/10)
30. 2015 Venable LLP Dyson, Inc. (DC65 and DC59 Vacuum
Cleaners), NAD Reports #5776 (10/23/14)
31. 2015 Venable LLP
32. 2015 Venable LLP Euro-Pro Operating, Inc. (Shark Rocket
Vacuum Cleaner), NAD Reports #5769 (10/3/14)
35. 2015 Venable LLP Premier Care in Bathing Walk-In Tub ERSP
Report #360 (12/23/14)
36. 2015 Venable LLP Takeaways for TV Ads Is the claim too good
to be true? Can you incorporate the qualifying language into the
claim itself? Can you streamline and simplify disclosures to make
them more digestible? Take a step back and analyze like a consumer
asking would I notice this and be likely to take it in? Avoid
disclosures With small print (no mouse type) With poorly
contrasting print (no grey on grey) With drive by language
appearing for too short a time Forgotten at the bottom of the
screen or appearing after the claim With kitchen sink or confusing
language With distracting elements
38. 2015 Venable LLP Premier Care in Bathing Walk-In Tub ERSP
Report #360 (12/23/14)
39. 2015 Venable LLP Premier Care in Bathing Walk-In Tub ERSP
Report #360 (12/23/14)
40. 2015 Venable LLP
41. 2015 Venable LLP
42. 2015 Venable LLP
43. 2015 Venable LLP
44. 2015 Venable LLP One Technologies Company marketed free
credit scores and provided customers with a 7- day free trial of
their credit scores, which turned into a paid credit monitoring
subscription after 7 days if customer failed to cancel. FTC:
company failed to provide adequate notice to consumers that they
would be enrolled in the negative option credit monitoring program
that charged $29.95/mo unless they called to cancel. 2015 Venable
LLP
45. 2015 Venable LLP One Technologies Before 2015 Venable LLP
Free 7-Day trial when you order your 3 Free Credit Scores.
Membership is just $29.95 per month until you call to cancel.
46. 2015 Venable LLP 2015 Venable LLP One Technologies Before
Offer Details By submitting your secure order you will be
immediately charged a $1 refundable processing fee, be eligible to
receive your free credit scores, and begin your trial membership in
ScoreSense credit monitoring. At the end of the 7-day trial period,
your credit/debit card will be charged $29.95 on a monthly basis
unless and until you call 1-855-277-3046 to cancel your membership
in ScoreSense.
47. 2015 Venable LLP One Technologies After 2015 Venable
LLP
48. 2015 Venable LLP One Technologies After 2015 Venable
LLP
49. 2015 Venable LLP Takeaways for Online Ads 4Ps apply in the
virtual world; everything you learned before applies If you cannot
disclose clearly and conspicuously on a particular platform, you
should not use the platform Need to look at the disclosure on a
variety of screen sizes and different lighting conditions Avoid:
Hyperlinks, but if used must be labeled clearly Hovers/popups
Excessive scrolling Draw attention to the disclosure Use common
sense to place where consumers are likely to notice and understand
them in connection with the representations that the disclosures
modify Text prompts are encouraged, tied to the disclosure to which
they refer and provide adequate cues Abbreviations need to be well
understood not #spon
53. 2015 Venable LLP Influencers Campaigns When it is not
otherwise clear to the audience, endorsers must disclose their
sponsorship role, or any financial interest, benefit or incentives
that they received from a company in their personal blogs, YouTube
channels, Facebook pages, or other online content or on any company
page to which they post content. How can disclosures be made
clearly and conspicuously? Location and frequency of disclosure: On
brand page, it is sufficient to make such a disclosure in the
posting itself. On endorsers personal page, disclosure needs to be
made frequently enough and in a prominent enough location so that
consumers will know about affiliation. Simply disclosing
relationship with company in the About page is not likely to be
sufficient. YouTube video, in the video or in the video info
section
54. 2015 Venable LLP
55. 2015 Venable LLP
56. 2015 Venable LLP
57. 2015 Venable LLP
58. 2015 Venable LLP How/What/Where do you need to disclose
native advertising? No magic words. There is flexibility but
consider the nature of the relationship. Top left of article with a
banner text cue and/or in first paragraph of the content Consider
shading or other visual cues to highlight sponsorship
59. 2015 Venable LLP Bottom Line Disclosures are not extinct.
Yet. Old guidance applies but old rules do not Time to simplify and
amp it up Focus on what matters It takes a village multiple actors
need to step up their game Window of opportunity to get this right,
before the FTC writes new rules