Today, WOMMA submitted formal Comments to the FTC concerning the Commission’s potential modification to Dot Com Disclosures: Information About Online Advertising. This promises to be a critical initiative by the Commission’s staff, as it seeks to provide guidance on the application of the “clear and conspicuous” standard to emerging technologies and new media platforms.

WOMMA’s Comments are in set forth in several sections. Once section provides a snapshot of the current marketing environment, and discusses how the marketing and advertising industry is in the midst of a fundamental paradigm shift. Specifically, WOMMA notes that in our current environment, advertisers, marketers, consumers, brands, interested consumers groups, and associations, as well as governmental regulators, are witnessing the explosion of “social media platforms” through:

• media fragmentation through the proliferation of new media devices;
• the acceptance – - and daily use – - of consumer-generated content (such as YouTube, Facebook, and Twitter);
• the acceptance and utilization of “search” in the consumer experience that encourages consumer-to-consumer communications about brands; and
• a shift in the nature of commercial discourse – - whereby consumers are playing a more active role in shaping and sharing commercial messages.

Another section discusses the FTC jurisprudence concerning the application of the “clear and conspicuous” standard and the consideration by the Commission of four key factors: (i) prominence; (ii) presentation; (iii) placement; and (iv) proximity; while another section provides a high-level discussion of emerging technology, identifying five general categories with examples for consideration: (1) location-based tools; (2) Twitter; (3) generic endorsements; (4) question and answer sites; and (5) recommendation/listing sites.

The final section outlines general recommendations by WOMMA, and proposes that any guidance by the staff should be flexible and fluid, recognizing the practical constraints of certain media platforms, and without stifling innovation that may benefit consumers’ access to and control over their commercial and personal information and communications. In particular, WOMMA recommends that the FTC hold a public workshop on these issues to obtain the full input from all stakeholders.

The Comments note that while WOMMA is committed to four key concepts that reside at the heart of consumer protection jurisprudence – - (i) transparency (or the disclosure of “material connections”); (ii) accuracy (or the communication of truthful information to consumers); (iii) honesty (or the avoidance of misleading or deceptive communications); and (iv) respect (or the recognition of the personal rights of others) – - WOMMA is committed to the appropriate development of emerging media that is designed not only to enhance commercial transactions but to provide mechanisms for meaningful social dialogue and appropriate entertainment for consumers of all ages.

WOMMA recommends, therefore, that any guidance by the FTC should be flexible and fluid, recognizing the practical constraints of certain media platforms, and without stifling innovation that may benefit consumers’ access to and control over their commercial and personal information and communications. In a practical voice, WOMMA notes that the fundamental intent of consumers communicating on many of these emerging technologies is to engage in social interaction or entertainment, not obtain information that could materially influence their commercial business decisions.

I look forward to your thoughts about WOMMA’s Comments and perspectives on the FTC initiative.