The Federal Trade Commission announced today that it plans to update its business guidance, ".com Disclosures:  How to Make Effective Disclosures in Digital Advertising."  The FTC said that it plans to update the guidance, which was published in 2013, because "some companies are wrongly citing the guides to justify practices that mislead consumers online."  

Samuel Levine, Director of the FTC's Bureau of Consumer Protection, said, "We know that some companies are wrongly citing our current guides to justify dark patterns and other forms of digital deception.  We are looking to update the guides to make clear that online tricks and traps will not be tolerated, and we look forward to hearing from the public on this initiative.” 

In the FTC's announcement, it said that one example of a practice that businesses are engaging in that misleads consumers is "burying disclosures behind hyperlinks."  

The FTC is inviting public comment on its planned revisions "to ensure the guides are helping honest businesses treat consumers fairly, rather than being used as a shield by firms looking to deceive."  The FTC is seeking comment on a number of specific issues, which include:  

  • What issues raised by current or emerging online technologies, activities, or features, such as sponsored and promoted advertising on social media platforms or otherwise, the use of advertising content embedded in games, or the use of dark pattern techniques in digital advertising, should be addressed in a revised guidance document?
  • How can the guidance on the use of hyperlinks be clarified to provide better guidance on the appropriate use of hyperlinks and how hyperlinks should be labeled?
  • Does the guidance adequately address how to make qualifying disclosures when consumers must navigate multiple webpages in order to complete a purchase?  If not, how should the guidance be modified?
  • The guidance says that when designing space-constrained ads, “disclosures may sometimes be communicated effectively to consumers if they are made clearly and conspicuously on the website to which the ad links.”  Should that guidance be modified, and if so, how?  Should the guidance document clarify when a disclosure on a marketer’s website can and cannot be sufficient to prevent a representation in an earlier communication that links to the website from being misleading?
  • Does the guidance adequately address advertising on mobile devices?
  • Should the guidance document address issues unique to specific audiences or demographics in seeing, hearing, or comprehending disclosures?  If so, how should the guidance be modified? Should any such guidance address microtargeted advertisements, and if so, how should it do so?
  • Should the guidance document address issues that have arisen from multi-party selling arrangements in internet commerce such as (1) established online sellers providing a platform for other firms to market and sell their products online, (2) website operators being compensated for referring consumers to other internet sites that offer products and services, and (3) other affiliate marketing arrangements?
  • Should the guidance document address issues that have arisen with respect to advertising that appears in virtual reality or the metaverse, and, if so, how should those issues be addressed?

Public comments must be received by August 2, 2022.