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  • Guidance in the .com Disclosure Guide that is potentially outdated;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’ practice focuses on consumer financial services law, primarily on federal and state law compliance matters. Chris regularly advises financial institutions, lenders, and sales finance companies in the development and maintenance of closed-end and open-end lending, automobile finance, fintech, point-of-sale, small dollar, and…

Chris’ practice focuses on consumer financial services law, primarily on federal and state law compliance matters. Chris regularly advises financial institutions, lenders, and sales finance companies in the development and maintenance of closed-end and open-end lending, automobile finance, fintech, point-of-sale, small dollar, and other credit programs. He provides guidance on federal consumer protection laws and regulations, including TILA, ECOA, ESIGN, and GLBA.

Photo of Alan D. Wingfield Alan D. Wingfield

Alan Wingfield is a partner in the firm’s Consumer Financial Services practice, with a focus on Financial Services Litigation and consumer law compliance counseling. Alan has represented businesses in many venues nationally in class action and individual consumer litigation. Alan’s practice includes compliance…

Alan Wingfield is a partner in the firm’s Consumer Financial Services practice, with a focus on Financial Services Litigation and consumer law compliance counseling. Alan has represented businesses in many venues nationally in class action and individual consumer litigation. Alan’s practice includes compliance counseling to help businesses with the myriad federal and state consumer protection laws and laws regulating financial services companies.

Photo of Mark Furletti Mark Furletti

Mark is the co-leader of the Consumer Financial Services Regulatory practice at the firm. He focuses on federal and state consumer and small business lending and payments laws, including those that apply to payment cards, buy-now-pay-later transactions, vehicle-secured loans, lines of credit, unsecured…

Mark is the co-leader of the Consumer Financial Services Regulatory practice at the firm. He focuses on federal and state consumer and small business lending and payments laws, including those that apply to payment cards, buy-now-pay-later transactions, vehicle-secured loans, lines of credit, unsecured loans, and deposit products. He counsels providers of consumer and small business financial services, including banks, on regulatory compliance, and defends them in class action litigation and government supervisory and enforcement matters. He also counsels purchasers of merchant receivables, companies that specialize in online small business lending, and companies that interact with their customers electronically or that set up recurring billing arrangements with their customers.

Mark regularly provides guidance on electronic payments and payment network rules, electronic contracting and mobile commerce, online banking, retail installment sales, preparing for examinations by the Consumer Financial Protection Bureau (CFPB), responding to CFPB supervisory requests (including so-called PARR letters), Article 9 of the Uniform Commercial Code, lease-purchase transactions and consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), Truth in Lending Act (TILA), Fair Credit Reporting Act (FCRA), Equal Credit Opportunity Act (ECOA), Electronic Funds Transfer Act (EFTA), Electronic Signatures in Global and National Commerce Act (E-SIGN), and statutes prohibiting unfair, deceptive, and abusive acts and practices.

He is the co-chair of the American Bar Association’s (ABA’s) National Institute on Consumer Financial Services Basics. He previously served as co-chair of the Electronic Financial Services Subcommittee of the ABA’s Consumer Financial Services Committee.

Previously, Mark worked for the Federal Reserve Bank of Philadelphia for several years, during which he wrote more than 15 articles on consumer credit and payments topics and advised those crafting regulations on consumer credit and consumer payments issues. One article, “The Debate Over the National Bank Act and the Preemption of State Efforts to Regulate Credit Cards,” 77 Temple L. Rev. 425 (2004), was named best student article by the American College of Consumer Financial Services Lawyers. Other published articles include “Credit Card Pricing Developments and Their Disclosure,” 13 J. of Fin. Transformation 5 (2005).

Mark also worked as a business consultant, assisting the nation’s largest retail banks and credit card lenders with customer strategy issues, and as a manager at one of the largest credit card issuers in the United States.

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.

Chris also leverages insights from his litigation and enforcement experience to help clients design new products and processes, including machine learning marketing, fraud prevention and underwriting models, product structure, advertising, online application flows, underwriting, and collection and loss mitigation strategies.

Chris brings a highly practical focus to his legal advice, informed by balancing a deep understanding of the business of consumer finance and the practical priorities of federal and state regulatory agencies.

Chris speaks frequently at conferences across the country on consumer financial services law and has been featured in numerous articles in publications such as the Wall Street Journal, the New York Times, the Washington PostAmerican BankerNational Law JournalBNA Bloomberg, and Bank Safety and Soundness Advisor.

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.