Senate Commerce Committee Members Air Laundry List of Pressing Issues Including Privacy, Data Security, and FTC Enforcement

On September 27th, the Senate Committee on Commerce, Science, and Transportation held a general oversight hearing of the FTC, which covered a multitude of major policy issues and included testimony from Chairwoman Edith Ramirez, Commissioner Maureen Ohlhausen, and Commissioner Terrell McSweeny.  Chairman John Thune (R-SD) convened the hearing, joined by Senator Richard Blumenthal (D-CT) who sat in for Ranking Member Bill Nelson (D-FL), who was not in attendance.  Several other Committee members also participated in the hearing, cycling through as schedules permitted on what appeared to be a jam-packed day.  Members in attendance included: Senators Dean Heller (R-NV), Amy Klobuchar (D-MN), Brian Shatz (D-HI), Jerry Moran (R-KS), Steve Daines (R-MT), Dan Sullivan (R-AK), Edward Markey (D-MA), Tom Udall (D-NM), Kelly Ayotte (R-NH), Maria Cantwell (D-WA), and Deb Fischer (R-NE).

The CommSenate Committeeissioners’ opening statements focused on key issues related to the agency’s mandate including enforcement, policy development, business education, and competition promotion.  But for members and Commissioners alike, privacy and data security were the clear headline issues of the day.  A variety of related topics were also raised, including protecting children online, the Internet of Things (IOT), tourism, credit reports, telecommunications, and deceptive claims.  A brief summary of these issues follows.  Continue Reading

FTC Bureau Director Highlights Continuing Health-Related Enforcement, Homeopathic Guidance, and ROSCA at NAD Conference

1Jessica Rich, Director of the FTC’s Bureau of Consumer Protection, highlighted the agency’s enforcement priorities at the National Advertising Division’s annual conference earlier this week.  Key mentions included the following:

  • Health Claims and Sensitive Populations – With health claims being a constant enforcement priority, Ms. Rich referenced cases involving cognition claims, alleged diabetes cures, and products that featured “gene-altering” claims.  She noted that more cases involving products targeted to sensitive populations – including older consumers – are in the pipeline.
  • Health Apps, Privacy and Data Security – As she has in prior testimony, Bureau Director Rich expressed concern about false cures featured on health apps and consumers’ growing interest in and use of health technology, and said that such products are a growing part of the FTC’s advertising program.  Consistent with these statements, Ms. Rich also encouraged companies offering fitness devices, wearable technology, and other internet of things (IoT) products to figure out how to provide adequate privacy choices for consumers.  Related to this, Ms. Rich highlighted the TrendNet and ASUSTek cases involving data security breaches and IoT products.  She also noted that there are a number of investigations underway.
  • Homeopathics – In September 2015, the FTC hosted a workshop on homeopathic products and claims.  Ms. Rich stated that substantive guidance on this topic will be released in the near future.
  • ROSCA – Consistent with the FTC’s interest in ensuring adequate disclosures in advertising, Ms. Rich noted that enforcement of the Restore Online Shoppers Confidence Act (ROSCA) is ongoing and that more cases are in the pipeline.  One of these is the FTC’s case against DIRECTV, which we wrote about here, in which the court recently found a triable issue of fact relative to the use of hyperlinks and info-hovers.

We will be following all of these developments closely.

Caution with Hyperlinks and Info-Hovers: Court Denies DIRECTV’S Motion for Partial Summary Judgment

Are hyperlinked and hovering disclosures enough to adequately inform consumers about the terms of your offer? Is requiring consumers to click on a button to accept all terms and conditions enough to obtain their informed consent to each of your terms and conditions? A recent federal court decision demonstrates that the answers to those questions are not always clear. The decision at issue is a September 23 order denying DIRECTV’s motion for partial summary judgment in a case brought by the Federal Trade Commission.

For context, in early 2015 the FTC filed a lawsuit against DIRECTV for deceptively advertising programming packages. Among other alleged violations, the FTC claimed that DIRECTV violated the Restore Online Shopper’s Confidence Act (ROSCA) by (i) charging consumers for access to premium channels through a negative option on its website while failing to clearly and conspicuously disclose all materials; and (ii) failing to obtain consumers’ express informed consent before charging them for premium channels through its website.

DIRECTV filed a motion for summary judgment on the two ROSCA claims, arguing that it disclosed all material terms through hyperlinks and info-hovers throughout the subscription web flow. DIRECTV likewise contended that it disclosed its negative option throughout the subscription web flow and in its terms and conditions, to which consumers had to affirmatively agree before their financial information was submitted to DIRECTV. To support its arguments, DIRECTV pointed out that the FTC had presented no contrary evidence. For example, the FTC did not produce consumer surveys, research, studies, or tests supporting its ROSCA claims, or even disclose whether any such evidence exists. DIRECTV also argued that its negative option disclosures complied with a consent decree previously entered into with state attorneys general.

The FTC argued in response that although DIRECTV may have disclosed material terms through hyperlinks and info-hovers, consumers would only see those disclosures if they clicked on the links or moved their cursors above the info-hovers. The FTC further argued that info-hovers did not accompany every mention of premium-channel promotions, and that consumers could navigate through the website and checkout without ever seeing any of the disclosures. The FTC also argued that the hyperlinks leading to the disclosures used non-descriptive names like “Additional Offer Details” that did not adequately describe the referenced content. Even if consumers clicked on disclosures, the FTC noted, the material terms were buried in dense, confusing language. Finally, although consumers may have been required to click to accept the terms and conditions generally, there was no information presented on the checkout page or the referenced terms and conditions about the negative option.

Last week, the federal judge overseeing the case denied DIRECTV’s motion for summary judgment on the two ROSCA claims. In denying DIRECTV’s motion, the court noted that “while the contents of the website did not appear to be disputed, the inferences drawn from those contents are vigorously disputed, and that dispute is the heart of this case.” In drawing all reasonable inferences in the opposing party’s (FTC’s) favor, as required when deciding a motion for summary judgment, the court held that there was an issue of fact as to whether the non-descriptive names of hyperlinks used by DIRECTV to disclose its material terms rendered the disclosures less than clear and conspicuous. Likewise, the court determined that, viewing all facts favorably for the FTC, there was a reasonable inference “that consumers did not have sufficient information and thus could not have given informed consent when they clicked ‘I Accept. Submit My Order.’”

Although the court’s denial of DIRECTV’s motion for partial summary judgment didn’t determine that DIRECTV’s disclosures were inadequate or that DIRECTV had violated ROSCA, the court’s finding that a triable issue of fact existed on these issues should serve as a warning to advertisers. As the FTC has advised, advertisers should incorporate key disclosures in the underlying claim, where possible, instead of using hyperlinks or info-hovers. When hyperlinks are used, the links should be obvious and labeled appropriately to convey the importance, nature, and relevance of the referenced information. Currently pending before the court is the FTC’s motion for partial summary judgment on the same claims that were the subject of DIRECTV’s motion. The FTC apparently believes that there can be no genuine issue of material fact over the alleged inadequacy of DIRECTV’s disclosures. Regardless of whether the FTC succeeds on it motion, the other claims at issue are headed for trial. Unless the parties reach a settlement, the trial is currently set to begin on January 30, 2017.

“Follow the Lead” Recap: FTC Summarizes Takeaways from Workshop on Lead Generation

The FTC released last week a paper summarizing and reflecting on its October 30, 2015 public workshop, “Follow the Lead,” which we previously discussed here and focused on lead generation practices and related privacy and consumer protection issues.  The paper expands upon many of the same principles addressed at the workshop, including how lead generation works and what benefits and risks arise from lead generation.  Notable takeaways include the following:

  • What is lead generation?  The paper defines lead generation broadly as “the process of identifying and cultivating individual consumers who are potentially interested in purchasing a product or service.”  A lead may consist of only the consumer’s name and contact information, or may involve more detailed and potentially sensitive information such as Social Security or consumer account numbers.
  • How does lead generation work?  LeadGenThe common thread of lead generation involves the collection of consumer information, typically on a website operated by a publisher or an affiliate.  From there, any number of things can happen.  The publisher or affiliate may sell the lead to another publisher or affiliate, to an aggregator, or to a merchant.  The FTC provided the adjacent figure to show some possible flows of leads.
  • What are the potential benefits of lead generation?  The FTC acknowledged that lead generation, when practiced ethically and consistent with consumer protection principles, can efficiently connect consumers with merchants they are interested in and promote competition.  Staff also noted that the sale of consumer leads could have positive effects on price and competition, as found in a research study discussed at the workshop in the mortgage lending context.
  • What are the potential concerns of lead generation?  The report noted that the lead generation and lead selling process is often hidden from consumers, which can lead to consumers providing information without knowing how and by whom their information will be used.  The FTC recommended that companies collecting information clearly and conspicuously disclose how the personal information will be used to facilitate informed consumer choice about when and how to share personal information.  In other cases, even where information is appropriately collected, it may be subsequently sold for nefarious purposes or purposes not authorized by the initial collection.  Staff recommended that companies involved in the lead generation process take steps to ensure that consumer information is used for legal and authorized purposes throughout the life of the lead.

Staff also highlighted recent enforcement actions against lead generators for using leads for unauthorized and illegal purposes and signaled that it could take action against entities even if they aren’t directly responsible for the problematic practice.  As noted in the report, “[i]gnoring warning signs that third parties are violating the law and pleading ignorance will not shield companies from FTC actions.”  Entities involved with lead generation should take note and ensure that they have considered the full life cycle of a lead before using or selling it.

Beyond “Clear and Conspicuous”: FTC Workshop Highlights Issues Related to Testing of Consumer Disclosures

On advertisements, websites, and legal documents, disclosures are everywhere.  But how do consumers notice, understand, and use disclosures in their decision-making?  And how can businesses and advertisers effectively design and evaluate disclosures?  These were questions that the Federal Trade Commission explored during its September 15 public workshop, “Putting Disclosures to the Test.”  Throughout the one-day workshop, academics, industry researchers, and regulators (from the FTC and CFPB) presented research and discussed issues related to the use of disclosures, including evaluation criteria, testing methods, and future areas for exploration.

In opening the workshop, Chairwoman Ramirez identified three primary goals of disclosures: (1) ensure that consumers see or hear the disclosure; (2) convey information in a manner that promotes consumer understanding of the disclosure’s content; and (3) facilitate consumer’s use of the information to make informed choices.  Unlike effective disclosures, ineffective disclosures have a tendency to overwhelm, confuse, or distract consumers.  Chairwoman Ramirez stated that the same legal principles that have guided the Commission’s approach to disclosures for some time have been applied to new media and technology.  She highlighted the Commission’s efforts to provide guidance on these emerging issues, such as through the 2013 updates to the .Com Disclosures Guide and the May 2015 release of “The FTC’s Endorsement Guides: What People Are Asking.”

FTC Disclosures WorkshopSome speakers noted that even disclosures that comply with the FTC’s clear and conspicuous standard may still be ineffective at communicating necessary information to consumers.  Chairwoman Ramirez suggested that use of disclosures in certain areas may be inappropriate altogether, although she declined to specify those areas.  Other speakers emphasized the ways that effective disclosures can benefit consumers by preventing advertisements from being deceptive, communicating privacy policies, and providing consent mechanisms.  Private research also suggests that there may be additional benefits to businesses from effective disclosures through improved market differentiation and customer satisfaction.  Some disclosures, however, may have adverse consequences like increasing complexity, producing consumer confusion, and creating unintended biases.

Testing disclosures can be helpful to ensure that that they have the intended effect without adverse consequences.  Testing can also help advertisers design simpler and more comprehensible disclosures.  Speakers generally lauded the capacity for disclosure testing to improve the effectiveness of disclosures, although they stopped short of suggesting that testing was legally required and acknowledged that testing is not always feasible.  Evaluating disclosures can be expensive and require resources outside of the reach of many businesses.  Further, there often is a lack of agreement over the ideal methods and procedures for testing disclosures.   Continue Reading

Casino Patron Out of Luck On Her New Jersey TCCWNA Claim

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The mid-level New Jersey appellate court issued an important decision last week under the state’s Truth-in-Consumer Contract and Warranty Notification Act (“TCCWNA”). The biggest TCCWNA issues, including to what extent the law applies to website terms of service and fairly standard liability disclaimers in those terms, are still awaiting decisions from U.S. District Courts. But with this new decision, we know at least two things: Only actual purchasers can bring claims under the TCCWNA — not “prospective” purchasers — and the law does not apply to coupons.

The new decision came in Smerling v. Harrah’s Entertainment, Inc., No. A-4937-13T3 (N.J. Super., App. Div., Sept. 9, 2016), after Harrah’s offered “$15 Birthday Cash” coupons redeemable for limited periods of time at the company’s Atlantic City casino. The plaintiff attempted to redeem the coupon in the middle of the night and was told that she could not do so until the appropriate desk opened at 6:00 AM. The plaintiff brought several claims against Harrah’s, including one for violating the TCCWNA. Discovery showed that of the 320,000 people to whom Harrah’s sent coupons, the plaintiff was the only one who tried to redeem a coupon at off-hours. Some 80,000 people redeemed their coupons successfully, and the other 240,000 did not attempt to redeem them at all. Nevertheless, the trial court certified a TCCWNA class and ultimately granted summary judgment to the plaintiff, awarding TCCWNA statutory damages of $100 to every person who successfully redeemed the coupon. The trial court also awarded plaintiff’s counsel over $400,000 in fees.

The Appellate Division reversed on several grounds. First, it held the plaintiff did not meet the TCCWNA’s definition of “consumer” because she did not “buy, lease, borrow or bail anything.” The plaintiff argued it was enough that she made the effort to drive to the casino to redeem the coupon, but the Court said that “[t]his expansive interpretation of ‘buy’ would render the Act’s conditions for application . . . virtually meaningless.” It then also held that the “Birthday Cash” coupon was not a “consumer contract,” because it “did not require the payment of any cash and plaintiff did not ‘buy’ the offer with cash or on credit.” The Court therefore reversed the summary judgment finding and vacated the class certification and fee orders.

The decision is “unpublished,” so its precedential value is limited. Even so, most trial courts in the federal and state systems would find it highly persuasive, if not controlling. Free coupons are not “consumer contracts,” and one who did not actually “buy” anything is not a “consumer” who can sue under the TCCWNA.

We are still awaiting decisions from federal trial judges in TCCWNA cases against major internet retailers. Those cases involve whether it violated the TCCWNA for retailers to, among other things, disclaim consequential damages for website outages and for inadvertent inaccuracies in the descriptions of items offered for sale on the websites. Motions to dismiss have been fully briefed and decisions could come at any time.

Groups Urge FTC to Act on Influencer Campaigns

This week, four groups – Public Citizen, Commercial Alert, the Campaign for a Commercial Free Childhood, and the Center for Digital Democracy – sent a joint letter to FTC encouraging the agency to “investigate and bring enforcement actions related to the practice of non-disclosed advertising through influencer user profiles on Instagram.”

As we reported last month, paid endorsements are a big issue for the FTC, and press reports had suggested that the agency might soon “crack down on paid celebrity posts.” But the crackdown is coming fast enough for some. The letter asks the FTC to move “promptly and aggressively” in order to stop a problem that “has reached epidemic proportions” and is putting children at risk. Dramatic claims.

The groups attempt to support these claims by reporting the results of an internal “investigation of the disclosure practices among movie stars, reality TV personalities, famous athletes, fitness gurus, fashion icons, and pop musicians.” According to the letter, the investigation revealed 113 influencers who endorsed a product without disclosure. Is a disclosure necessary? Public Citizen doesn’t seem to know for certain whether the celebrities were compensated, but presumes so, “based on industry norms.”

Despite not being certain, the groups present examples of over 100 Instagram posts that could be problematic. And they ask the FTC to “take aggressive enforcement action against companies and agencies that engage in the practice of non-disclosed ‘influencer’ endorsements.” (They even suggest two companies that should be at the top of the FTC’s list.) Although the groups believe that the FTC should continue to focus on the companies, they also urge the agency to take action against prominent influencers.

KK Instagram Post

Regardless of whether the allegations in the letter are accurate, this development highlights the potential risks in this area. Not only do companies have to worry about the FTC itself – they also have to worry about being called out by “watchdog” groups.

NAD Revisits Crowd-Sourced Substantiation

Traditionally, when companies wanted to advertise that consumers preferred their product over another product, the companies would substantiate their claim by running a survey. Consumers would be stopped in a mall, called, or contacted online, and asked their opinions. Now that many consumers freely post their opinions online, though, some companies are wondering whether they can simply base preference claims on those opinions. Perhaps, but it’s easier said than done.

We’ve posted about one company’s attempts to support a “most recommended” claim and a “more 5-star online reviews” claim based on online reviews. In each of the cases, the NAD expressed concerns with the advertiser’s methodology and questioned whether the evidence was reliable. Now, a recent case involving Vapore’s “more 5-star reviews than any other steam inhaler” claim illustrates the NAD’s continued concerns in this area.

Vapore based its claim on a snapshot of reviews on various websites. The NAD was satisfied with parts of the company’s Inhalermethodology. For example, Vapore had taken steps to ensure the data was comprehensive and that the reviews were from verified purchasers. However, the NAD had other concerns. For example, the NAD worried that Vapore didn’t account for potential double-counting of reviews across sites. And it noted that some of the reviews were dated and may no longer be accurate.

The NAD has shot down several attempts by advertisers to use crowd-sourced data to support claims. That doesn’t mean it’s not possible to make a claim based on consumer reviews, but advertisers face an uphill battle when it comes to convincing the NAD that they’ve controlled all of the variables that could affect the reliability of the data.

Ninth Circuit Decision in AT&T “Throttling” Case May Reset Boundaries Between FTC and FCC Jurisdiction

On Monday, August 29, 2016, the Ninth Circuit Court of Appeals issued an opinion that may dramatically alter the boundaries between the Federal Trade Commission’s (FTC) and Federal Communications Commission’s (FCC) authority over phone companies, broadband providers, and other common carriers.  The Ninth Circuit dismissed a case that the FTC brought against AT&T over its practices in connection with wireless data services provided to AT&T’s customers with unlimited data plans.  The FTC had filed a complaint against AT&T for “throttling” the data usage of customers grandfathered into unlimited data plans.  Once customers had used a certain level of data, AT&T would dramatically reduce their data speed, regardless of network congestion.  The FTC asserted that AT&T’s imposition of the data speed restrictions was an “unfair act or practice,” and that AT&T’s failure to adequately disclose the policy was a “deceptive act or practice.”

The Ninth Circuit’s decision is the latest in a series of actions attempting to identify the jurisdiction over Internet access services and Internet-based services.  As providers and regulators have struggled to identify the proper regulations applicable to such services, the Ninth Circuit’s decision could force significant shifts by both the FTC and FCC for at least a large segment of the industry.

Background

At issue before the Ninth Circuit was the scope of the FTC Act’s exemption of “common carriers” from the FTC’s authority.  The FTC argued, and the trial court held, that the common carrier exemption only applied to the extent that the service in question is a common carrier service (i.e., an “activity-based” test that precluded FTC jurisdiction only where a common carrier is engaging in common carrier activities).  Because the service that the FTC challenged (wireless broadband Internet access service (“BIAS”)) was not a common carrier service at the time that the FTC brought its action against AT&T, the trial court held AT&T was not engaging in common carrier activity and therefore the FTC had authority to bring its lawsuit.

AT&T appealed the decision, arguing that the FTC Act’s exemption of common carriers should be based on their status, and thus telecommunications service providers like itself are exempt from the FTC’s authority regardless of whether the activity at issue is a common carrier service.

The Ninth Circuit noted two things related to the dispute.  First, the court noted that “it is undisputed that AT&T is and was a ‘common carrier[] subject to the Acts to regulate commerce’ for a substantial part of its activity.”  Further, the court noted that, during the time period in question, AT&T’s mobile data service “was not identified and regulated by the FCC as a common carrier service” although, since the FCC’s 2015 Open Internet Order, the FCC has classified the service as a common carrier service.

The Ninth Circuit sided with AT&T, and remanded the case for an entry of an order for dismissal. The court held that under the plain language of the statute, the exemption is based on a company’s status and applies regardless of the activity at issue.  The “literal reading of the words Congress selected,” the court wrote, “simply does not comport with an activity-based approach [to the common carrier exemption].”  The court compared the common carrier exemption to the other exemptions in the statute (for banks, savings and loan institutions, federal credit unions, air carriers and foreign air carriers) that are admitted by the FTC to be status-based, and to the exemption for meatpackers “insofar as they are subject to the Packers and Stockyards Act,” which the court found to be activity-based.  The court held that amendments enacted in 1958 to Section 5 – which added the “insofar as” language – indicated an activity-based exemption for that provision but affirmed status-based exemptions for the remainder “then and now.”

Notably, the Ninth Circuit chose to address the status question, rather than addressing a more narrow issue of whether the FCC’s 2015 reclassification of BIAS as a telecommunications service applied to AT&T’s service retroactively.

Implications

The FTC issued a statement that it is “disappointed” and “considering [its] options,” but it is unclear whether it will appeal the ruling to the Supreme Court.   It is worth noting that, although the Ninth Circuit did not discuss the decisions, this is the third time that a court of appeals has faced status-based arguments relating to the common carrier exemption.  The Seventh Circuit’s 1977 decision in U.S. v. Miller, and the Second Circuit’s 2006 decision in FTC v. Verity Int’l, Ltd., both involved entities claiming common carrier status, although neither decision brought finality to the question.  If the FTC pursues the issue further, industry and practitioners could receive welcome guidance on the issue.

More broadly, the FTC has openly called for the end of the common carrier exemption in the past few years.  This decision may add fuel to the agency’s efforts in that regard.

As is, the decision makes it more difficult for the FTC to bring an action against a company that can claim to be a common carrier.  The Ninth Circuit’s decision noted that AT&T unquestionably was a common carrier “for a substantial part of its activity” and at one point distinguished a case, noting that AT&T’s status “is not based on its acquisition of some minor division unrelated to the company’s core activities.”  Nevertheless, the court’s analysis leaves open the possibility that even providing only a small amount of common carrier service may be enough to qualify all of a company’s activities for the common carrier exemption.

On the FCC side, there are equally broad questions raised by the decision.  The FCC recently has broadly construed its own authority under Section 201(b), to a fair degree of controversy, to address practices of common carriers “for or in connection with” their services, such as advertising and billing.  Presumably, these efforts will continue after the Ninth Circuit’s ruling.  The Ninth Circuit’s ruling, however, may encourage the FCC to fill any potential gap in coverage by taking a broader view of its own authority to regulate non-common carrier services that common carriers offer to consumers.  This could have significant implications for a number of ongoing FCC proceedings, including a proceeding to overhaul the FCC’s privacy rules after the Open Internet Order and requests to classify SMS messaging and interconnected voice-over-Internet-Protocol (VoIP) service as telecommunications services subject to common carrier regulation.  This also might color the FCC’s approach to regulation of over-the-top services provided by non-carrier entities using telecommunications or Internet services.

Time will tell how this plays out, but for now, the Ninth Circuit appears to have significantly reset the boundaries between the agencies’ jurisdictions.  AT&T is not off the hook yet, however, as it faces a parallel action from the FCC, which has issued a Notice of Apparent Liability to AT&T, alleging that its disclosures in connection with its unlimited data plans violated the FCC’s “transparency” rules.  The FCC proposed $100 million in forfeitures for the violation, which sparked vigorous dissent by the two Republican commissioners and was opposed by AT&T in a strongly-worded response.  The FCC forfeiture proceeding remains pending.

Steve Augustino and Jameson Dempsey, of Kelley Drye’s Communication Group, co-authored this post.

NAD Worries Consumers Will Jump To Wrong Conclusions Over Trampoline Reviews

A growing number of consumers read reviews before they decide to purchase a product. Because of this – as we’ve posted various times – regulators and competitors are keeping a watchful on eye reviews that seem biased or inauthentic. The latest challenge comes from a world that isn’t known for its advertising challenges: the world of trampolines.

The Trampoline Safety website evaluates trampolines based on over 40 metrics and provides product reviews, videos, and articles. If you visit the site, you may notice that the top-rated trampolines are all made by a Trampolinecompany called JumpSport. But unless you look closely at the disclosure at the bottom of the page, you may not notice that the Trampoline Safety website is run by the same family that runs JumpSport.

The NAD determined that consumers who visit the website are likely to believe “that the content was independently generated editorial content, rather than content created by JumpSport.” The website is unbranded and there is “nothing to alert a consumer to the fact that this is an advertisement,” that the site is run by JumpSport, or that the tests were “devised and conducted by the company that produces the three trampolines that achieved, far and away, the best results.”

The disclosure at the bottom of the page did not cure the problem for two reasons. First, the NAD held that an advertiser can’t use a disclosure to contradict the main message of an ad. Here, the NAD thought the main message was that the reviews were independent. And, second, even if the disclosure hadn’t contradicted the main message, the NAD held that the disclosure failed to meet the “clear and conspicuous” standard. Because consumers wouldn’t see the disclosure unless they scrolled to the bottom of the page, it was ”not easy for consumers to notice, read, and understand.”

The decision covers a lot of ground. (For example, the NAD also took issue with JumpSport’s testing methodology and found that its tests were not sufficiently reliable to support the claims on the site.) But our focus for this post is the manner in which the reviews were presented. If your company has any connection to a product review – regardless of whether the review was written by your company or some third party who has received an incentive from you – that connection needs to be disclosed in a meaningful way. A fine-print disclosure is unlikely to help.

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