Online diploma mills, which require little or no coursework to complete a degree have recently garnered much attention within the online education realm. Websites which offer questionable diplomas for hundreds of dollars target vulnerable consumers seeking a degree to improve their life prospects, while simultaneously casting a shadow over legitimate online educational institutions which offer accredited programs and a complete educational experience including coursework, teacher interaction, and grading. In the latest crackdown on online diploma mills, the Federal Trade Commission obtained a temporary restraining order against Diversified Educational Resources, LLC and Motivational Management & Development Services, Ltd., companies which generated millions of dollars by selling worthless high school diplomas to thousands of consumers.
According to the allegations of the FTC’s complaint, the defendants have been operating purported online education sites since 2006, under the names Jefferson High School Online and Enterprise High School Online. The FTC alleges that the websites misleadingly represent that these are accredited schools by saying that the defendants “[p]rovide a respected and recognized high school diploma equivalency program,” that students completing the program will be “high school graduates,” and that the schools are registered with the Florida Department of Education. While the latter statement is technically true, the websites do not reveal that registering with Florida’s School Choice Program does not mean that the programs are accredited but rather, according to the complaint, registration is merely a “ministerial act, based solely on their own self-reported answers to Florida’s annual private school survey” which the Florida Department of Education does not verify. The truth of the accreditation status can only be found buried in dense paragraphs of text, in which the defendants note that they are “actively pursuing accreditation options” although they have not applied for any yet.
Consumers paid $200 to $300 to register on the websites. Those fees did not entitle them to any coursework, education, or test preparation. Rather, customers were immediately prompted to take a “test,” which was nearly impossible to fail because the websites provided hints to ensure that customers passed. After passing the test, customers received diplomas bearing the name “Jefferson High School Online” or “Enterprise High School Online.”
The “diplomas” that the defendants issued to customers were useless, according to the FTC. Many customers learned that their diplomas were invalid after unsuccessfully attempting to use them to apply to jobs, enroll in college, or join the military. Further, unsatisfied customers who sought a refund were refused, according to the FTC. Through this scam, the complaint says, the defendants collected over $11 million since 2009 without providing a real education product or service.
The U.S. District Court for the Southern District of Florida issued a temporary restraining order and asset freeze in response to these allegations, suspending the domain names and prohibiting any material misrepresentations regarding online education. The case remains pending in the Southern District of Florida and the defendants’ responsive pleadings are due in October.
In this health-conscious age, consumers are always on the lookout for new products which will improve wellness and quality of life. Marketers attuned to this trend may be tempted to increase sales by extolling the virtues of their products, even if health claims are unsubstantiated by scientific testing. A recent FTC case, however, demonstrates the price that advertisers pay for overstating health claims.
The FTC filed a case against TriVita Inc., a dietary supplement company, for its marketing of the Nopalea cactus juice drink. The beverage was widely advertised in television infomercials and online as an “anti-inflammatory wellness drink.” Nopalea includes juice from the nopal cactus, also known as the “prickly pear.” TriVita’s “Chief Science Officer” stated that the nopal cactus is proven to reduce inflammation, which he linked to Alzheimer’s disease, allergies, diabetes, and heart disease. TriVita sold each 32-ounce bottle of Nopalea for $39.99, plus shipping and handling.
According to the FTC’s complaint, the Nopalea infomercial was one of the most frequently aired commercials in the United States. The ads stated that the juice would relieve pain, reduce swelling in joints and muscles, and improve breathing. Infomercials featured “customer testimonials” in which individuals stated that Nopalea helped relieve them of symptoms of a wide variety of conditions, including inflammation, chronic pain, respiratory conditions, and skin conditions. However, the FTC alleged that these individuals were paid for their endorsements, a fact not sufficiently disclosed in the advertisements. When customers called the toll-free number advertised, sales representatives told customers that Nopalea would make them “pain-free,” according to the FTC’s complaint. The health representations had not been substantiated with scientific studies at the time they were made.
The FTC filed its complaint and request for permanent injunction on July 10, 2014. On July 11, the FTC filed a stipulated settlement order in which TriVita agreed to forfeit $3.5 million to the FTC. The order prohibits the defendants from marketing Nopal cactus products using unsubstantiated or misleading health claims, and from using paid endorsers unless any material connection between the individual and the company is clearly and prominently disclosed.
The multi-million dollar settlement in this case should serve as a warning to marketers who are tempted to overstate health claims in order to generate traffic and sales. The FTC takes health claims seriously and reviews health-related ads with extra scrutiny, so specific claims should only be made when supported by solid, scientific proof, and any paid testimonials should be clearly disclosed. As the cactus juice company learned, failure to comply with these standards will lead to a prickly situation.
New year, new resolutions. Yesterday, the FTC announced a resolution of its own: to undertake a nationwide enforcement effort to protect consumers against deceptive weight loss claims. Dubbed “Operation Failed Resolution,” the FTC’s latest enforcement effort seeks to protect consumers who face a barrage of “opportunistic marketers” promising quick ways to shed pounds. According to the FTC, these marketing tactics cause millions of dollars of consumer injuries and encourage people to postpone important changes to diet and exercise.
To announce this new initiative, the FTC held a press conference in which it identified four significant enforcement actions: (1) Sensa – a flavored powder that claims to cause weight loss when sprinkled on food; (2) L’Occitane Inc.– a skin cream that promised to shave inches off consumers’ bodies; (3) HCG Diet Direct – a product based on the human chorionic gonadotropin hormone; and (4) LeanSpa – a dietary supplement. Collectively, these four enforcement actions total $44 million in potential recovery for consumers.
All four enforcement actions shared one common thread – claims of quick and easy weight loss that were not supported by evidence. Many of the ads in question touted substantial weight loss without diet or exercise simply by using the product alone. Although some of these marketers cited clinical studies that supported their claims, the FTC said that the so-called “independent” studies were largely fabricated. The FTC also took issue with consumer endorsements, which failed to disclose that the consumers were paid for their testimonials or that the consumers were related to the owner. The FTC also scrutinized so-called physician endorsements. According to the FTC, marketers failed to disclose that their endorsers were compensated to the tune of $1,000-$5,000 and free trips.
Yesterday’s press conference is not the first time that the FTC has taken action against deceptive weight loss claims. In 2011, we reported on 10 lawsuits filed by the FTC against marketers behind the ubiquitous “1 Tip for a Tiny Belly” ads, which the FTC claimed were a scheme by marketers of diet and weight loss products to grab consumer credit card information and pile on additional, unapproved charges.
Although deceptive weight loss claims are not a new phenomenon, the FTC announced yesterday that it is taking a new approach to cracking down on these types of ads. The FTC is now encouraging media outlets that run these ads to conduct a “gut check” and turn down spots with bogus claims. Yesterday’s press conference was a call to action for both consumers and media outlets to help the FTC track down deceptive weight loss marketers, which can mean only one thing – more widespread enforcement efforts against marketers of dietary supplements. The FTC does not comment on non-public investigations and would not comment on whether these enforcement efforts would result in criminal enforcement from other agencies. One thing is for certain, however: If you make a claim about your weight loss product, you’d better be able to back it up.
A great way to make money is to develop a product or service that responds to a consumer want or demand, and then to stay ahead of prospective competitors by offering better pricing or quality. A not-so-great way to make money is to convince consumers to buy a product or service that they don’t really want or need, at inflated rates. A highly dubious way to make money is to trick consumers into paying for something they didn’t want and didn’t mean to buy.
Businesses operating in this third category, which may include a scareware marketer or two, have to consider risk versus reward. Is the reward of temporary profits worth the risk of legal action; what is the likelihood of legal action; and what is the potential cost of such action?
Someone who operates on tricks over treats, or by pure scareware tactics, may expect business to dry up as consumers learn to avoid their traps. Such an operator must also face the looming threat of consumer legal action, government intervention, or run-ins with credit card companies alarmed by high chargeback rates.
For these types of businesses in the mobile marketing space, the cost of potential government intervention is going up. A recent settlement between the Federal Trade Commission and Jesta Digital LLC points to the severe penalties a business may face for operating on the sidelines of fair play. The consequences include a hefty fine, consumer refunds, restricted billing practices and stringent compliance measures for years to come.
Jesta (which also does business as Jamster) is known mostly for its marketplace of ringtones, photos, videos and apps. Starting in 2011, it ran a scareware campaign, purportedly for anti-virus software, that the FTC asserts crossed the line into deceptive advertising. The ads ran on the free version of the Angry Birds app for Android. Using a graphic that looks like the Android robot logo, the banner ad displayed a warning that viruses had been detected on the device – even though no virus scan was conducted. According to the FTC, when the consumers clicked on the “remove [virus]” button, or similar “warning” buttons, Jesta directed them through a number of pages about virus protection that left to very fine print a monthly service fee for ringtones and other content.
The FTC alleges that consumers were even charged at the instant of pressing a “Protect Your Android Today” button. Through the use of Wireless Access Protocol (WAP) billing, the company was able to charge consumers through their cell phone numbers without needing to obtain express authorization. (It may be that the use of the billing practice actually spurred the FTC into action as wireless carriers initiated their own penalties against Jesta for the large number of consumers demanding refunds.) The FTC also alleges that the anti-virus software often failed at download (apparently at one point, only 372 people out of 100,000 subscribers actually received some sort of anti-virus app download link).
The FTC describes numerous deceptive practices: mimicking the Android logo to confuse consumers into believing the virus warnings were credible, charging consumers without their knowledge or consent, failing to provide services charged for. The company apparently was aware that its scareware tactics crossed the line, as an email correspondence among company executives noted that the chief marketing officer was “anxious to move our business out of being a scam and more into a valued service.”
So now the company must pay the FTC a $1.2 million penalty and offer to refund consumers. The process of identifying and notifying consumers of their refund options and tracking all this to show to the FTC will be a costly undertaking. Another major cost will be the stringent and detailed billing practices that the company – and all participants, including principals and agents – must adhere to, disclosures it must make, and compliance monitoring and recordkeeping requirements it must adhere to, for 20 years. The settlement agreement is far more than a hand slap; its terms keep Jesta (and its principals!) beholden to the FTC for the foreseeable future.
Mobile marketers who may calculate risk versus reward and decide that a get-rich-quick scheme is worth the risk should think again. The FTC is making deceptive marketing tactics, like many scareware campaigns, a priority. We have seen strong action from the agency in the recent past, including hefty penalties for the company Innovative Marketing and its principal Marc D’Souza. Moreover, the newly-appointed head of consumer protection at the FTC, Jessica Rich, has noted that the FTC is expanding digital enforcement, increasing the risk of getting caught in the agency’s cross-hairs.
Recently, the Consumer Financial Protection Bureau, the watchdog agency of the financial industry, has proved that it has considerable bite. Created under the Dodd-Frank act to fill gaps in regulatory coverage, the CFPB’s mandate is to enforce federal regulations that, among other things, restrict “unfair deceptive or abusive acts or practices” in consumer finance. The CFPB in recent months announced two major debt relief crackdowns, the most recent of which permanently shut the doors of a Florida company.
Last month, the CFPB announced that it filed a complaint against a Florida debt-relief company that misled consumers across the country by charging upfront fees for debt-relief services without actually settling most of the consumers’ debts. According to the complaint, the defendants engaged in abusive practices by knowingly enrolling vulnerable consumers who had inadequate incomes to complete debt-relief programs. The complaint charged American Debt Settlement Solutions, Inc. (ADSS) and its owner, Michael DiPanni, with actions that were not just unfair and deceptive, but also abusive. Indeed, this case if the first time that the CFPB in its short history has enforced this prohibition on “abusive” acts or practices.
While “unfair” and “deceptive” are familiar terms to anyone who follows the Federal Trade Commission, the term “abusive” is new to Dodd-Frank and has been the subject of much consternation among Republicans in Congress, who consider it too vague. With this complaint, the CFPB provided what may be its first example of the type of conduct it will consider “abusive.” ADSS allegedly collected about $500,000 in fees from hundreds of consumers in multiple states, charging illegal upfront fees for debt-relief services and “falsely promising them it would begin to settle their debts within three to six months when, in reality, services rarely materialized.
The CFPB said the actions were “abusive” because consumers reasonably relied on the company to “act in their interest by enrolling them in a debt-relief program that they can be reasonably expected to complete, and which will therefore result in the negotiation, settlement, reduction, or alteration of the terms of their debts.” The CFPB simultaneously filed a proposed consent order that would settle the matter by halting the company’s operations and imposing a $15,000 fine.
ADSS and its owner may have walked away relatively unscathed, with only a civil penalty, but others caught in the CFPB’s cross hairs have not been as fortunate. Earlier this year, the CFPB filed suit against two lawyers and two debt relief companies in New York, alleging that they charged thousands of consumers illegal advance fees and left some worse off financially, while illegally profiting themselves. One of the lawyers, Michael Levitis, also faces mail and wire fraud charges brought by the Manhattan U.S. Attorney’s Office – the first-ever criminal charges stemming from a CFPB referral. What’s notable in this complaint is that the acts are described as both deceptive and unfair, but not as abusive.
Although a relatively new agency, the CFPB is proving that it has the chops to take down offenders in the financial industry. Both the Florida and New York cases are signs of future enforcement, and they send a stern warning to offenders – if you prey on vulnerable consumers, be prepared for a fight.
Ignorance of the law is no excuse; nor is (willful) ignorance of a business partner’s illegal activities.
That’s a lesson to be learned from a recent amended complaint filed by the FTC which named a payment processor in its complaint against a telemarketer that allegedly engaged in a scam concerning credit card interest rate reduction. The Commission originally filed suit against the telemarketing company, Innovative Wealth Builders, Inc., and its owners in January for misrepresenting the debt relief service they were selling, charging a fee before providing debt relief services, and billing consumers without their express informed consent. The January action resulted in the temporary shutdown of the company’s operations pending outcome of the suit.
But earlier this month, the Commission filed an amended complaint, adding charges against Independent Resources Network Corp., IWB’s payment processor. The payment processor was accused of assisting and facilitating IWB’s deceptive practices, in violation of the Telemarketing Sales Rule (TSR). 16 C.F.R. § 310.3(b).
The TSR was created by the FTC in 1995 at the direction of Congress, which directed the Commission to proscribe rules to address abusive and deceptive telemarketing acts. The FTC has amended the TSR several times in order to respond to developments in telemarketing schemes. The amendments allow for liability for third parties such as payment processors and lead generators that have provided “substantial assistance or support” to any seller or telemarketer while knowing, or consciously avoiding knowing, that the seller or telemarketer is engaged in activity in violation of the TSR.
In the FTC’s complaint against IRN, the Commission notes that IRN “processed millions of dollars of credit card transactions for IWB, thereby earning considerable fees for itself.” The complaint identifies several indicators that would have, or should have, put IRN on notice of IWB’s practices in violation of the TSR, including the following:
• IWB sent IRN copies of company documents including, but not limited to, telemarketing scripts and samples of the IWB defendants’ “financial plan”
• IRN was aware that IWB had a variety of complaints on consumer websites
• IWB had an “F” rating with Better Business Bureau and IRN accessed the BBB website several times
• IRN received thousands of copies of chargeback disputes initiated by dissatisfied consumers
• IRN received multiple fraud alerts from Discover regarding IWB
Instead of ceasing to process transactions for IWB, IRN responded to these “red flags” by increasing the percentage it withheld from transactions processed for the telemarketer and holding such sums in a reserve account.
Some takeaways from the complaint and other FTC developments: if you are going to invest in basic due diligence to determine the risk level and credibility of a prospective account, you should probably follow through with your findings, following the letter of the law. The FTC recently issued additional proposed rule changes to the TSR to address more payment processing concerns.
Over the past decade the Federal Trade Commission has brought cybersecurity enforcement actions against various private companies, imposing tens of millions of dollars in monetary penalties and requiring companies to maintain more stringent data-security practices. No company has ever challenged the FTC’s authority to regulate cybersecurity in this way in court – until now. On June 17, 2013, a federal court will finally get a chance to weigh in on whether the scope of the FTC’s regulatory jurisdiction is so broad as to include setting standards for cybersecurity.
In FTC v. Wyndham Worldwide Corporation, et al., the FTC launched a civil action against the parent company of the Wyndham hotels and three of its subsidiaries for data security failures that led to three major data breaches in less than two years. The Commission’s complaint charges that Wyndham’s security practices were unfair and deceptive in violation of the FTC Act.
Unlike many other data-security FTC enforcement actions, in which the defendant has chosen to cut its losses and settle out of court, Wyndham has decided to stand and fight with a motion to dismiss. Judge Esther Salas of the U.S. District Court for the District of New Jersey is expected to rule on Wyndham’s motion on June 17.
With respect to the FTC’s unfairness claim, Wyndham’s motion asserts that the FTC is attempting to circumvent the legislative process by acting as if “it has the statutory authority to do that which Congress has refused: establish data-security standards for the private sector and enforce those standards in federal court.”
According to Wyndham, “on multiple occasions in the 1990s and early 2000s the FTC publicly acknowledged that it lacked authority to prescribe substantive data-security standards under the [FTC Act]. For that very reason, the FTC has repeatedly asked Congress to enact legislation giving it such authority.” Further, Wyndham highlights the Senate’s failure to pass the Cybersecurity Act of 2012, which sought to address the need for specific data-security standards for the private sector, and President Obama’s February 2013 Executive Order on cybersecurity that was issued in response to the Congressional stalemate.
On its face, Wyndham’s motion to dismiss seems quite strong. However, the facts that the FTC is alleging do not cut in Wyndham’s favor. The Commission’s complaint alleges that Wyndham’s failure to “adequately limit access between and among the Wyndham-branded hotels’ property management systems, [Wyndham] Hotels and Resorts’ corporate network, and the Internet” allowed intruders to use weak access points (e.g., a single hotel’s local computer network) to hack into the entire Wyndham Hotels and Resorts’ corporate network. From there, the intruders were able to gain access to the payment management systems of scores of Wyndham-branded hotels.
According to the FTC, Wyndham failed to remedy known security vulnerabilities, employ reasonable measures to detect unauthorized access, and follow proper incident response procedures following the first breach in April 2008. Thus, the corporation remained vulnerable to attacks that took place the following year. All told, the intruders compromised over 600,000 consumer payment card accounts, exported hundreds of thousands of payment card account numbers to a domain registered in Russia, and used them to make over $10.6 million in fraudulent purchases.
Unfortunately – as Wyndham notes in its motion to dismiss – hacking has become an endemic problem. There has been no shortage of stories about major cyber-attacks on private companies and governmental entities alike: from Google and Microsoft to the NASA and the FBI. And the FTC has not been shy about bringing enforcement actions against private companies with inadequate security measures.
If Wyndham prevails, the case could usher in a major reduction in FTC enforcement efforts. However, if the court sides with the FTC, the commission will be further empowered to regulate data security practices. With such high stakes on both sides, any decision is likely to result in an appeal. In the meantime, companies in various industry sectors that maintain personal consumer information are awaiting next week’s decision.
“Cramming” – while it sounds like the experience of being in the middle row of a cross-country flight – actually refers to unauthorized charges on phone bills. Residential and business telecommunications customers have experienced cramming on their wireline bills for years, particularly for premium and other pay-per-call services. And the FTC has brought nearly two dozen cases against those companies.
With so many U.S. consumers using mobile phones (and many replacing their wireline phones and relying on wireless service exclusively), cramming has migrated to mobile phone bills. We have previously discussed the FTC’s ongoing review of mobile payments and the agency’s continuing concerns with cramming practices.
Last week, the FTC filed its first legal action to shut down a mobile cramming operation. In federal court in Georgia, the FTC alleges that since 2011, Wise Media, LLC, its CEO Brian Buckley, and its owner Winston Deloney have made millions of dollars by placing unauthorized charges for premium text messages services offering “horoscopes, flirting, love tips and other information” on consumers’ mobile phone bills. The FTC’s complaint also names Concrete Marketing Research, LLC, a company owned by Deloney, as having received funds earned through the allegedly unfair and deceptive practices.
According to the FTC, consumers did not “opt in” to receive these text message services, for which Wise Media charged $9.99 per month. The charges appeared on the bills and were repeated each month. Many consumers did not notice the charges and simply paid them. Some consumers noticed the charges but had great difficulty finding a contact for Wise Media, according to the complaint. Other consumers contacted the company, indicating they had not authorized the charges, but were still charged. Still others allegedly were told they would receive refunds, but Wise Media never issued those refunds. Instead, the underlying mobile phone carriers often ended up refunding money to complaining customers. The FTC noted that mobile phone carriers had experienced a high rate of complaints on Wise Media charges. One unnamed major phone carrier had even terminated Wise Media based on its excessive rates.
The FTC’s complaint charges that Wise Media and the other defendants violated Section 5 of the FTC Act by representing that consumers were obligated to pay for premium text services they never ordered. According to the FTC, these representations were false or misleading statements, constituting deceptive acts or practices under Section 5. Further, the complaint states that the placing of charges on consumers’ mobile phone bills without consumers’ “express informed consent” constituted unfair acts and practices also prohibited by Section 5.
The agency is seeking substantial relief and penalties from Wise Media and the other defendants. The FTC’s requested relief includes a request for a temporary and preliminary injunction to prevent future violations of the FTC Act by defendants, an asset freeze, and the refund of monies paid and “the disgorgement of ill-gotten monies.” In fact, after the filing of the complaint, Wise Media and the other defendants entered into a stipulation with the FTC agreeing to a temporary restraining order, an asset freeze, and other relief. The court also ordered that a receiver be appointed to oversee Wise Media’s assets and is requiring financial disclosures by the defendants.
This action signals that the FTC is continuing to monitor closely the mobile payment marketplace and that it will use its broad Section 5 authority to curb alleged deceptive practices in this medium. In fact, on May 8, the FTC staff will host a roundtable discussion on preventing mobile cramming, which will feature consumer advocates, industry leaders, and government regulators. It will be interesting to see what actions the major mobile carriers may propose, as the carriers have been on the receiving end of many of the consumer complaints (and refunds) resulting from third-party charges.
Some lawyers who deal regularly with the Federal Trade Commission in investigations of allegedly false and deceptive online advertising have noticed that the agency is beginning to take steps in these investigations that are unprecedented and draconian – and that judges seem to be going along. Below is a set of questions and answers with Jeff Ifrah, founding partner of Ifrah Law, on these new enforcement methods.
1. What is the first thing that a lawyer representing a company being probed by the FTC on false-advertising charges can expect to see?
IFRAH: Agency lawyers will go to a federal district judge with a copy of a temporary restraining order (TRO) for the judge to sign on an ex parte basis (without the defendant or its lawyers being present). Judges are allowed to do this as long as a hearing is set in a few days for a preliminary injunction, at which the defendant is represented. Meanwhile, the company is essentially barred from doing business by the terms of the TRO.
2. What is the FTC’s usual next step?
IFRAH: The agency will then go before the same judge with a draft of a preliminary injunction that is pretty much identical to the temporary restraining order. These injunctions basically require the business to continue to remain at a standstill until a trial is held and a settlement is reached. In addition, they require the company to disclose on all its web sites that it is being investigated for false and deceptive practices and to disclose online all of its sensitive financial information and that of its owners. Very often, the defendant will not contest this injunction request by the FTC. It is remarkable how many lawyers simply capitulate and agree to these draconian orders and set their clients up to fail.
3. What’s wrong with that? Isn’t the injunction lifted when the defendant agrees to settle the case?
IFRAH: Yes, but by that time, it may be too late, and the company may have gone out of business as a result of the restrictions that were imposed on it by the injunction and as a result of the disclosures that it had to make.
4. Are there other problems with these preliminary injunctions?
IFRAH: Yes. The FTC usually asks for a preliminary injunction with many standard features, and the judge usually grants it. But no two cases or defendants are the same. The courts are not taking into account the fact that different situations require different results. Instead, the injunctions are overbroad and reach behavior that is beyond what is alleged in the complaint.
Some of these restraining orders and injunctions restrict how much money a defendant can spend in a month or what type of online advertising it can use while the case is pending. Other injunctions require affirmative behavior, such as a requirement that the defendant report to the FTC every time it creates or operates any type of business. In either case, the defendant is forced to open its entire existence to the FTC, and everything it does is subject to scrutiny.
Another problem with standard, overbroad injunctions is that a defendant may become uncertain as to what it must do to prevent being held in contempt of court for non-compliance. The language in the injunction is often so vague and undefined that the FTC can act in its discretion to find a defendant in contempt.
5. And is that the end of the story?
IFRAH: No, unfortunately, plaintiffs lawyers often look to copycat an FTC action, and as a result companies may then have yet another headache to deal with, if they haven’t already been irreparably damaged by the FTC’s actions.
This week, the FTC released updated guidance to its 2000 “Dot Com Disclosures,” a guide covering disclosures in online advertising. The online world has certainly changed in 13 years, and the new guidelines, available here, cover advances in online advertising, including mobile advertising.
One central theme still prevails: existing consumer protection laws and rules apply no matter where you offer products and services: newspapers, magazines, TV and radio commercials, websites, direct marketing, and mobile marketing. Thus, the basic principle applies that companies must ensure that their advertisements are truthful and accurate, including providing disclosures necessary to ensure that an advertisement is not misleading. Further, the disclosures should be clear and conspicuous – irrespective of the medium of the message.
In determining whether a disclosure is “clear and conspicuous” as the FTC requires, advertisers should consider the disclosure’s placement in the ad. Importantly, the 2000 guidelines defined proximity of disclosures to ads as “near, and when possible, on the same screen.” The new guidelines state that disclosures should be “as close as possible” to the relevant claim. The closer the disclosure is to the claim, the better it is for FTC compliance purposes.
Advertisers should also consider: the prominence of the disclosure; whether it is unavoidable (e.g., consumers must scroll past the disclosure before they can make a purchase); whether other parts of the ad distract attention from the disclosure; whether the disclosure should be repeated at different places on the website; whether audio message disclosures are of sufficient volume and cadence (e.g., too fast); whether visual disclosures appear long enough; and, whether the language of the disclosure is appropriate for the intended audience. The FTC suggests avoiding “legalese” or technical jargon.
Mobile marketers should take note that the FTC provided some additional guidance regarding disclosure issues particular to mobile marketing. In particular, the FTC stated that the various devices and platforms upon which an advertisement appears or a claim is made should be considered. For example, if the advertiser cannot make necessary disclosures because of the limit of the space (e.g., in a mobile app), then the claim should not be made on the platform.
The FTC does permit hyperlinks for disclosures in certain circumstances. However, hyperlinks must:
– be obvious
– be labeled appropriately to convey the importance, nature and relevance of the information they lead to (such as “Service plan required. Get service plan prices here”)
– be used consistently
– be placed as close as possible to the relevant information the hyperlink qualifies and made noticeable
– take consumers directly to the disclosure after clicking
Companies should assess the effectiveness of the hyperlink by monitoring click-through rates and make changes accordingly. The agency also suggests that advertisers design ads so that scrolling is not necessary to find a disclosure. The FTC discourages hyperlinks for disclosures involving product costs or certain health and safety issues (similar to its 2000 guidelines).
Probably the most helpful part of the new guidelines are the 22 different examples of proper/improper disclosures the FTC provides at the end of the guidelines. As companies move forward in promoting products and services online, particularly on mobile platforms, reviewing these examples along with the general principles of truthful and complete statements in advertising may save a company from an FTC enforcement action.
Organizations are increasingly marketing their products and services on mobile platforms. Advertisers should take note that special considerations apply in the mobile marketplace, especially the space and text size limitations. If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violative of an FTC rule, it must be clear and placed next to the offer. If that can’t be done, the safest course would be to move the offer to another platform, such as a traditional website. The FTC and the states have demonstrated that they take a keen interest in mobile marketing and they will be watching claims and disclosures in the smartphone/tablet universe.