The advent of mobile and social marketing has created a significant headache for attorneys and marketers alike. The FTC has stated that consumer disclosure requirements to avoid deception (e.g., ensuring that disclosures are clear and conspicuous, are in close proximity to the statement requiring the disclosure, are sufficiently prominent, are in understandable language, are not hidden behind a non-descriptive hyperlink, etc.) apply to marketers regardless of the medium in which they are delivered. Whether you’re delivering a marketing communication via email to a desktop computer, via social media, or to a mobile or wearable device, these rules apply.
The result is an understandable tension between attorneys trying to ensure that required disclosures are being made to control risk, and marketers seeking to deliver a compelling message and CTA (call to action) in a limited amount of space. Attorneys need to partner with their marketing brethren to find creative solutions to achieve both goals.
One idea for common ground here from an industry perspective worth pitching is to develop a set of standard “consumer disclosure icons,” or CDIs, that use a single character to denote a standard marketing disclosure phrase, e.g., “additional purchase required,” “no purchase necessary,” “subscription required,” “terms and conditions apply,” “sponsored promotion,” “paid advertisement,” etc. These could be something as simple as a set of initials in a box, such as the following for “no purchase necessary”:
Using these as a single character in a standard browser font would mean each CDI only takes up one character in a text-based communication, freeing up valuable real estate for the communication itself. Each could be a hyperlink to a page with explanations of the meanings of standard CDIs. Companies would want to use them consistently, e.g., at the end of each paragraph with claims triggering a disclosure.
CDIs would not work for non-standard disclosures, and companies would need to be careful not to improperly use CDIs where a custom disclosure is required.
Through efforts such as “Operation Full Disclosure” in September 2014, the FTC is looking to the industry to demonstrate their compliance with standard consumer marketing requirements even as the medium in which these messages are delivered continues to evolve (and shrink in size). Devising a set of consumer disclosure icons for common disclosures in visual mobile and social marketing may be a solution embraceable by marketers, attorneys and regulators alike.