On June 3, the Federal Trade Commission (FTC) published a request for information that could form the basis for a major update of its digital advertising guidance. The FTC’s most recent digital advertising guidance is its 2013 “.com Disclosures – How to Make Effective Disclosures in Digital Advertising” (.com Disclosures Guide). The .com Disclosure Guide provides guidance on how to make “clear and conspicuous” disclosures in online advertisements and provides examples of problematic advertisements with explanations for how to make clear and conspicuous disclosures. The .com Disclosure Guide has been hugely influential in setting the bar for compliant internet advertising. However, in the near decade since the FTC released the .com Disclosure Guide, the worlds of digital advertising and online transacting have changed dramatically.

The FTC is now considering updating and reissuing the .com Disclosures Guide, and is seeking public comment to inform such an effort. In a blog post, the FTC laid out a key area for examination would be “the increased use of dark patterns, manipulative user interface design, and other forms of digital deception that pose unique risks to consumers online and in the mobile space.” In April 2021, the FTC convened a workshop on the issue of dark patterns — generally speaking, user interfaces that have been intentionally designed to trick users into doing things, such as buying unwanted products or agreeing to recurring bills, that cause consumer harm.

The FTC’s request for information lists key questions for commenters to address. Specifically, the questions highlight the following topics:

  • Issues raised by current or emerging online technologies, such as advertising on social media platforms and games or the use of “dark pattern” techniques in digital advertising;
  • Issues raised by new laws and regulations;
  • Research on, among other things, online advertising techniques and the effectiveness of disclosures that the FTC should consider;
  • Issues raised by certain types of disclosures that should be discussed separately from general disclosure requirements;
  • Guidance in the .com Disclosure Guide that is potentially outdated;
  • Guidance in the .com Disclosure Guide that should be clarified, expanded, strengthened, or limited;
  • Potential modification and/or clarification of guidance on hyperlinks, multiple webpages, space-constrained advertisements, and advertising on mobile devices;
  • Potential new guidance on issues unique to specific audiences or demographics in seeing, hearing, or comprehending disclosures;
  • Potential new guidance on issues arising from “multiparty selling arrangements,” such as those involving third-party platform providers, online referral programs, and other affiliate marketing arrangements; and
  • Potential new guidance on advertising in virtual reality or the metaverse.

Comments can be submitted online or by mail by August 2, 2022.

This request for information could ultimately lead to major changes in how the FTC views the requirements for companies of all kinds to advertise their products online to the public. And as noted above, the .com Disclosure Guide has been extremely influential in guiding other regulatory agencies’ assessments of online advertising as well. As such, Troutman Pepper will continue to monitor the FTC’s and other regulators’ activities to keep readers apprised of changes in this dynamic area.

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Photo of Chris Capurso Chris Capurso

Chris focuses his practice on consumer financial services compliance, guiding clients through the many federal and state laws and regulations that impact consumer credit programs.

Photo of Alan D. Wingfield Alan D. Wingfield

Alan Wingfield helps consumer-facing clients navigate compliance, litigation and regulatory risks posed by the complex web of state and federal consumer protection laws. He is a trusted advisor and tireless advocate, helping clients develop practical compliance and dispute-resolution strategies.

Photo of Mark Furletti Mark Furletti

Mark helps clients navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small business, particularly in connection with credit, deposit, and payments products. He is a trusted advisor, providing practical legal counsel and advice to providers of financial

Mark helps clients navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small business, particularly in connection with credit, deposit, and payments products. He is a trusted advisor, providing practical legal counsel and advice to providers of financial services across numerous industries.

Photo of Chris Willis Chris Willis

Chris is the co-leader of the Consumer Financial Services Regulatory practice at the firm. He advises financial services institutions facing state and federal government investigations and examinations, counseling them on compliance issues including UDAP/UDAAP, credit reporting, debt collection, and fair lending, and defending…

Chris is the co-leader of the Consumer Financial Services Regulatory practice at the firm. He advises financial services institutions facing state and federal government investigations and examinations, counseling them on compliance issues including UDAP/UDAAP, credit reporting, debt collection, and fair lending, and defending them in individual and class action lawsuits brought by consumers and enforcement actions brought by government agencies.

Photo of Caleb Rosenberg Caleb Rosenberg

Caleb is an associate in the firm’s Consumer Financial Services Practice Group. He focuses his practice on helping federal and state-chartered banks, fintech companies, finance companies, and licensed lenders navigate regulatory risks posed by state and federal laws aimed at protecting consumers and…

Caleb is an associate in the firm’s Consumer Financial Services Practice Group. He focuses his practice on helping federal and state-chartered banks, fintech companies, finance companies, and licensed lenders navigate regulatory risks posed by state and federal laws aimed at protecting consumers and small businesses in the credit and alternative finance products industry.