Make It Clear and Conspicuous

            Much of the FTC’s Dot Com Disclosures Guide is devoted to a discussion of what constitutes a “clear and conspicuous” disclosure. The requirements depend on the nature of the advertisement. To determine if your ad complies, the FTC recommends adopting the perspective of a reasonable consumer and then asking yourself if the disclosure is presented in a way that you would both notice and understand.

            There are a number of factors to consider, including:

• Whether a single disclosure is sufficient or whether the disclosure needs to be posted at various points throughout the site;
• Whether anything on the site distracts attention from the disclosure;
• The location of the disclosure, including where it is in relation to the advertisement; and
• The prominence of the disclosure.

            The FTC emphasizes that its rules and guides using the terms “written” or “writing” apply online as well as offline. The FTC also cautions that certain advertisements sent by e-mail may be considered “direct mail advertisements” and thus be subject to certain prohibitions under the direct mail solicitation rules. Ultimately, if you run an ad on your Web site that a reasonable consumer will understand and that will not deceive that consumer, you should be fine. If, however, you run an ad that is even slightly deceptive or somewhat confusing, and you fail to “clearly and conspicuously” disclose, you may have a problem.