Advertising and the First Amendment:
Metatags, Hyperlinks and Mouseover Text

If you are interested in advertising and the First Amendment, you have come to the right place because you will find a number of articles concerning commercial speech here. The following original article (excerpted here) originally appeared in an earlier Issue of Advertising Compliance Service™ - which was continuously published from 1981-2015. at Tab #15, New Media, Article #92. The complete article, among many other articles pertaining to advertising and the 1st amendment, is available only to Advertising Compliance Service™ subscribers--which include some of the largest advertisers and law firms in the U.S. (Edited portions indicated by * * * .)

FTC USES HEALTH CARE CASES TO
VASTLY INCREASE ITS JURISDICTION

ADDITIONAL POWERFUL STEPS TAKEN

FTC has taken additional powerful steps to yet again vastly increase its jurisdiction over the Internet. At the very heart of how the Internet works is the idea of hyperlinks. In announcing three recent cases involving alleged health claims, FTC stated that it now can assert jurisdiction using hyperlinks when FTC deems that such hyperlinks, and other important Internet technologies, are "used to communicate deceptive representations." Specifically, FTC said that it will now review websites globally that use these three core Internet technologies for violations of its myriad rules, regulations and case decisions:

(1) Hyperlinks: They're at the core of what the Internet is and does. FTC has now signalled that it will now review these hyperlinks to uncover violations among virtually all commercial Websites around the world. (FTC officials have previously confirmed to Advertising Compliance Service™ that it claims jurisdiction for every commercial Website globally--so long as even one visitor goes to that Website.)

(2) Mouseover Text: FTC will now review "mouseover text" to look for violations of its many rules. Mouseover text is a technology that enables a text message to pop up when a visitor places his or her mouse over an image on the web page. FTC will now closely scrutinize commercial Websites that contain the ubiquitous mouseover text to find violations.

(3) Metatags: Metatags are keywords embedded in the source code for a Web page that, like the HTML code used to create the web page, are not seen by a visitor. They're used by some search engines to respond to "consumers'" search requests. FTC will now closely scrutinize commercial Websites that contain the ubiquitous metatags. FTC, in its description, said that these metatags are "invisible to an average consumer," hence its claim of jurisdiction over these. By claiming jurisdiction over this portion of HTML code, FTC is in fact claiming jurisdiction over all HTML code and perhaps over all code that is used on the Internet.

HOW FTC INCREASED ITS JURISDICTION

In the Natural Heritage Enterprise and the EHP Products cases, FTC claimed that metatags, * * * FTC reasoned that * * * .

THREE SEPARATE SETTLEMENTS WITH INTERNET COMPANIES

FTC announced three separate settlements with Internet companies and their principal officers. The products include cetylmyristoleate (CMO) and Essiac Tea. FTC alleges that these companies claimed their products as being * * * More significantly, the FTC complaints challenge the companies' use of various core Internet technologies, such as metatags, hyperlinks, and mouseovers, " * * * "

CASES ARE RESULT OF FTC SURVEILLANCE

These cases are the results of "Operation * * * . In 1999, FTC said its surveillance program pinpointed over 400 Websites making certain claims for * * *

FTC's proposed settlements are with * * * .

DOES YOUR WEB SITE USE MOUSEOVER TEXT?

Does your web site use "mouseover text"? In FTC's Natural Heritage Enterprise case, FTC argued that Miller also used "mouseover text" in a deceptive manner. FTC indicated that it believes that when you use "mouseover text", that text should be limited to describing that image, e.g., a flower. Said FTC:

"Generally, when a surfer rolls the mouse over an image such as a flower, a small text window pops up briefly on the screen. Instead of using that text to describe the image that appears on the screen (e.g. `flower image.gif'), Miller used the text window to * * * '"

DOES FIRST AMENDMENT APPLY TO "MOUSEOVER TEXT"?

The FTC release did not mention whether it thought the First Amendment applied to "mouseover text" as it is clearly speech. Say "mouseover text" is used to help visitors around the page or says "Welcome to our Web Site." This speech would go beyond FTC's apparent speech limits that it seemingly now would impose on "mouseover text" (i.e., "using that text to describe the image that appears on the screen").

More Information Below

PROPOSED SETTLEMENTS

In the FTC cases, the companies agreed to settle the charges and the proposed settlement agreements were announced for public comment.

According to FTC, CMO Distribution Centers of America * * *

The proposed settlements would * * * . The companies also would be barred from making * * * . The proposed settlements would further bar respondents from making any representations about the * * * .

Also, the settlements with CMO Distribution and EHP would require respondents to offer * * * . The settlement * * * would require him to pay $17,500 in consumer redress and send notices to all consumers who * * * .

NOTE: Consent agreements are for settlement purposes only and do not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of $11,000.

LAWYER'S REFERENCE SERVICE

Natural Heritage Enterprises, et al., FTC File No. 992 3225, April 5, 2000; CDC, File No. 982 3180, April 5, 2000; EHP, FTC File No. 982 3181, April 5, 2000.

The following section includes the full-text, or excerpted portions, of articles on Advertising and the First Amendment which originally appeared in Advertising Compliance Service™:

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