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Venable partner Len Gordon was quoted in an article on March 18, 2013 in "The Tan Sheet", an Elsevier Business Intelligence publication, on the new online disclosure guidelines for advertisers set forth in the new Federal Trade Commission (FTC) guidance issued recently.

Gordon said the guidelines repeatedly state that marketers need to monitor web traffic to see who is clicking through a link to a disclosure, which is something that can be measured by common analytics tools. He said "analytics are getting more sophisticated, but (the data) could also come back to bite (advertisers) if it shows that a marketer points to a disclosure and FTC argues that no one looks at it."

The use of hyperlinks or symbols such as asterisks in an online ad that point to a disclosure far removed from the ad itself or on a separate web page, is not acceptable to the FTC in some cases. Commenting on this gray area, Gordon said he thinks that the entirety of an advertisement will affect how much significance the FTC will give to the prominence of disclosures and the clarity of symbols. He said "if everything else about the advertising is okay, and it's just that the disclaimer isn't prominent enough, that would be a harder case, versus if there are a lot of issues - and then the symbol issue."

The biggest difference between the 2000 and current guidance is the FTC's expectations for social media and mobile web ads. Commenting on this change, Gordon said "for most marketers, this is not a radical departure, it's an incremental change."