Unformatted text preview: the sender in order to make a purchase are subject to the
Telemarketing Sales Rule, unless they qualify for the direct mail exemption under 16 C.F.R. 310.6(b)(6) by
clearly and conspicuously making certain specified disclosures in the original solicitation. 3 .com Disclosures: How to Make Effective Disclosures in Digital Advertising rule, which addresses the sale of merchandise that is ordered by mail, telephone, facsimile
or computer, applies to those sales regardless of “the method used to solicit the order.”8
Solicitations made in print, on the telephone, radio, TV, or online naturally fall within the rule’s
scope. In addition, the Guides Concerning the Use of Endorsements and Testimonials in
Advertising (“Endorsement Guides”) apply to “any advertising message . . . that consumers
are likely to believe reflects the opinions, beliefs, findings, or experience of a party other than
the sponsoring advertiser . . . .”9 The Guides refer to advertising without limiting the media in
which it is disseminated and, therefore, encompass online ads.10 III. Clear and Conspicuous Disclosures in
When it comes to online ads, the basic principles of advertising law apply:
1. Advertising must be truthful and not misleading;11
2. Advertisers must have evidence to back up their claims (“substantiation”);12 and
3. Advertisements cannot be unfair.13 8. 16 C.F.R. § 435.2(a).
9. 16 C.F.R. § 255.0(b).
10. Indeed, when the Endorsement Guides were reviewed in 2009, examples involving blogs were included, to
make clear that the FTC Act applies to this then-new form of social media marketing.
11. As explained in the FTC’s Deception Policy Statement, an ad is deceptive if it contains a statement — or
omits information — that is likely to mislead consumers acting reasonably under the circumstances and
is “material” or important to a consumer’s decision to buy or use the product. See FTC Policy Statement
on Deception, appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174 (“Dec...
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This document was uploaded on 03/29/2014.
- Spring '14