This presentation is from Affiliate Summit West 2016 (January 10-12, 2016 in Las Vegas, NV). Session description: What does “clear and conspicuous” disclosures mean given the advancement of technology? Navigate effective disclosures in digital advertising according to the FTC’s .com Disclosure Guidelines.

1. www.ifrahlaw.com www.ifrahlaw.com
WHOOMP! THERE IT IS –
DISCLOSURES, DISCLOSURES, DISCLOSURES
Affiliate Summit West 2016
Rachel Hirsch, Esq., Senior Associate
P (202) 524-4145 /

2. www.ifrahlaw.com
DISCLOSURE: IF YOU HAVEN’T READ THE FTC GUIDELINES, YOU
MIGHT AS WELL GIVE UP NOW.
P (202) 524-4145 /
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

3. www.ifrahlaw.com
DISCLOSURE: FAILURE TO FOLLOW FTC GUIDELINES MAY
RESULT IN ENFORCEMENT.
P (202) 524-4145 /
OPERATION “FULL DISCLOSURE”

4. www.ifrahlaw.com
DISCLOSURE: FAILURE TO FOLLOW FTC GUIDELINES MAY
RESULT IN ENFORCEMENT.
P (202) 524-4145 /
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.

5. www.ifrahlaw.com
DISCLOSURE: IF YOU CAN’T SEE, HEAR, OR READ THIS DISCLOSURE IT
DOESN’T COUNT.
P (202) 524-4145 /
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

6. www.ifrahlaw.com
DISCLOSURE: IF YOU CAN’T SEE, HEAR, OR READ THIS DISCLOSURE IT
DOESN’T COUNT.
P (202) 524-4145 /
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!

7. www.ifrahlaw.com
DISCLOSURE: IF YOU CAN’T SEE, HEAR, OR READ THIS DISCLOSURE IT
DOESN’T COUNT.
P (202) 524-4145 /
Advertisers Should Be Aware Of:
• Short Form And Abbreviated Disclosures
• Technological Limitations
• Proximity

8. www.ifrahlaw.com
DISCLOSURE: TWEETING IS NOT JUST FOR THE BIRDS.
P (202) 524-4145 /
CHALLENGE: Limited To 140 Characters
Disclosures: “Ad,” #Ad, “Sponsored,” #Sponsored
EXAMPLES: COLE HAAN Sponsored Tweets; Kim Kardashian

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DISCLOSURE: THINK BEFORE YOU “LIKE.” - FACEBOOK
P (202) 524-4145 /
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.

10. www.ifrahlaw.com
DISCLOSURE: THINK BEFORE YOU “LIKE.” - BLOGGERS
P (202) 524-4145 /
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.

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DISCLOSURE: IF YOU DO NOT FEEL COMFORTABLE DISCLOSING
AFFILIATE LINKS, YOU PROBABLY SHOULD NOT BE USING THEM.
P (202) 524-4145 /
EX: Affiliate Link:
_______.
EX: This Post Contains
Affiliate Links, Which
Means I Receive __ If
You Make a Purchase
Using This Link.

12. www.ifrahlaw.com
DISCLOSURE: IF YOU ARE GOING TO BILL A CUSTOMER, MAKE SURE
THE CUSTOMER ACTUALLY KNOWS ABOUT IT.
P (202) 524-4145 /
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!

13. www.ifrahlaw.com
DISCLOSURE: THE KEY TO A GOOD DISCLOSURE IS KNOWING WHEN
TO MAKE IT.
P (202) 524-4145 /
Always Ask Yourself: What Is the Overall Net Impression Of My Ad?

14. www.ifrahlaw.comwww.ifrahlaw.com
1717 Pennsylvania Avenue
Washington, D.C. 20006
www.ifrahlaw.com
P (202) 524-4145 /
Email: rhirsch@ifrahlaw.com
Twitter: TheRealMsHirsch
Blog: www.ftcbeat.com