Disclaimers in Character-Limited Media

 By Mark Land, M.S., RAC-US, AAHP President

The Federal Trade Commission (FTC) issued an enforcement policy statement on marketing claims for OTC homeopathic drugs on November 15, 2016.¹ As a statement of FTC enforcement policy, the document has no independent legal force; it simply states what FTC believes the law requires and, presumably, the position FTC would take in an enforcement proceeding.

FTC said that there are no valid studies showing efficacy by current scientific methods for the vast majority of homeopathic drugs. According to FTC, that means “marketing claims” of a therapeutic effect lack a reasonable basis and are “likely” misleading under the FTC Act.

FTC acknowledged that the use of appropriate disclaimers might cure what it perceives as misleading claims. The guidance is silent on type size and prominence of any disclaimer. FTC has said that disclosures that are required to prevent deception or to provide consumers material information about a transaction must be presented clearly and conspicuously.²

FTC has said that, “hyperlinks can provide a useful means to access disclosures that are not integral to the triggering claim provided certain conditions are met. Hyperlinked disclosures may be particularly useful if the disclosure is lengthy or if it needs to be repeated."³ The hyperlink title “basis of claim” was referenced by FTC for use in social media platforms with character space limitation.

FDA states that regardless of character space constraints that may be present on certain Internet/social media platforms, if a firm chooses to make a product benefit claim, … the firm should also provide a mechanism to allow direct access to a more complete discussion of the risks associated with its product.⁴

The conditions under which disclosures are used in digital advertising are important to their effectiveness, including: conspicuousness, proximity, visual cues, obviousness, hyperlink label copy, and facility of access when linking to an external web page.

Summary of Federal Trade Commission Dot com Disclosures Guidance^5,6

The general principles of advertising law apply online, but new issues arise almost as fast as technology develops — most recently, new issues have arisen concerning space-constrained screens and social media platforms.

1. Advertising must be truthful and not misleading.
2. Advertisers must have evidence to back up their claims (“substantiation”).
3. Advertisements cannot be unfair.

When practical, advertisers should incorporate relevant limitations and qualifying information into the underlying claim, rather than having a separate disclosure qualifying the claim.

Required disclosures must be clear and conspicuous. In evaluating whether a disclosure is likely to be clear and conspicuous, advertisers should consider its placement in the ad and its proximity to the relevant claim. The closer the disclosure is to the claim to which it relates, the better. To make a disclosure clear and conspicuous, advertisers should place the disclosure as close as possible to the triggering claim.

Take account of the various devices and platforms consumers may use to view advertising and any corresponding disclosure. If an ad is viewable on a particular device or platform, any necessary disclosures should be sufficient to prevent the ad from being misleading when viewed on that device or platform.

When a space-constrained ad requires a disclosure, incorporate the disclosure into the ad whenever possible. However, when it is not possible to make a disclosure in a space-constrained ad, it may, under some circumstances, be acceptable to make the disclosure clearly and conspicuously on the page to which the ad links.

If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violates an FTC rule, and it is not possible to make the disclosure clearly and conspicuously, then that ad should not be disseminated. This means that if a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures.

Advertisers are responsible for ensuring that all express and implied claims that an ad conveys to reasonable consumers are truthful and substantiated.

A disclosure can only qualify or limit a claim to avoid a misleading impression. It cannot cure a false claim. If a disclosure provides information that contradicts a material claim, the disclosure will not be sufficient to prevent the ad from being deceptive.

To make a disclosure clear and conspicuous, advertisers should:

• Place disclosures near, and when possible, on the same screen as the triggering claim.
• Use text or visual cues to encourage consumers to scroll down a web page when it is necessary to view a disclosure.

Hyperlinks to disclosures should be:

• Obvious and noticeable.
• Placed near the relevant information.
• Take consumers directly to the disclosure on the click-through page.
• Assess the effectiveness of hyperlink by monitoring click-through rates.

Hyperlinking to a disclosure:

• With hyperlinks, additional information, including disclosures, might be placed on a web page entirely separate from the relevant claim.
• Disclosures that are an integral part of a claim or inseparable from it, however, should be placed on the same page and immediately next to the claim.
• In these situations, the claim and the disclosure should be read at the same time, without referring the consumer somewhere else to obtain the disclosure.
• This is particularly true for cost information or certain health and safety disclosures.

Hyperlink effectiveness:

1. The key considerations for evaluating the effectiveness of all hyperlinks are:

• The labeling or description of the hyperlink;
• Consistency in the use of hyperlink styles;
• The placement and prominence of the hyperlink on the web page or screen; and
• The handling of the disclosure on the click-through page or screen.

2. Choosing the right label for the hyperlink:

• A hyperlink that leads to a disclosure should be labeled clearly and conspicuously.
• Make it obvious.
• Label the link to convey the importance, nature, and relevance of the information.
• Don’t be subtle.
• Account for technological differences and limitations.

Hyperlinks that simply say “disclaimer,” “more information,” “details,” “terms and conditions,” or “fine print” do not convey the importance of the information.

Recognize and respond to any technological limitations or unique characteristics of high-tech methods of making disclosures, such as frames or pop-ups.

Display disclosures prior to purchase, but recognize that placement limited only to the order page may not always work.

Creatively incorporate disclosures in banner ads or disclose them clearly and conspicuously on the page the banner ad links to.

Prominently display disclosures so they are noticeable to consumers, and evaluate the size, color, and graphic treatment of the disclosure in relation to other parts of the web page.

Review the entire ad to ensure that other elements, text, graphics, hyperlinks or sound do not distract consumers' attention from the disclosure.

Repeat disclosures, as needed, on lengthy websites and in connection with repeated claims.

Use audio disclosures when making audio claims, and present them in a volume and cadence so that consumers can hear and understand them.

Display visual disclosures for a duration sufficient for consumers to notice, read and understand them.

Use clear language and syntax so that consumers understand the disclosures. Commission rules and guides that use specific terms: written, writing ... printed or direct mail, are adaptable to new technologies. Rules and guides that apply to written ads or printed materials also apply to visual text displayed on the Internet. If a seller uses email to comply with FTC rule or guide notice requirements, the seller should ensure that consumers understand that they will receive such information by email and provide it in a form that consumers can retain.

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References

1.   United States Federal Trade Commission. “Enforcement Policy Statement on Marketing Claims for OTC Homeopathic Drugs." Federal Register. Vol. 81, No. 239; p. 90122. December 13, 2016. https://www.ftc.gov/system/files/documents/public_statements/996984/p114505_otc_homeopathic_drug_enforcement_policy_statement.pdf

2.   United States Federal Trade Commission. “Dot Com Disclosures: Information About Online Advertising.” May 2000. https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-issues-guidelines-internet-advertising/0005dotcomstaffreport.pdf

3.   United States Federal Trade Commission. “Dot Com Disclosures: Information About Online Advertising.” May 2000. https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-issues-guidelines-internet-advertising/0005dotcomstaffreport.pdf

4.   United States Food and Drug Administration. “Guidance for Industry: Internet/Social Media Platforms with Character Space Limitations — Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices." June 2014. https://www.fda.gov/ucm/groups/fdagov-public/@fdagov-drugs-gen/documents/document/ucm401087.pdf

5.   United States Federal Trade Commission. “Dot Com Disclosures: Information About Online Advertising.” May 2000. https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-issues-guidelines-internet-advertising/0005dotcomstaffreport.pdf

6.   United States Federal Trade Commission. “.com Disclosures: How to Make Effective Disclosures in Digital Advertising.” March 2013. https://www.ftc.gov/system/files/documents/plain-language/bus41-dot-com-disclosures-information-about-online-advertising.pdf