FTC Native Advertising Guideline Lawyer

FTC Native Advertising Guideline Lawyer Defending Investigations Targeting Deceptively Formatted Advertising

FTC native advertising guideline lawyer Richard Newman assists clients with issues relating to the creation of advertisements that are in the same format as the content audiences have sought, such as native ads, sponsored content or branded content.  From a policy perspective, the FTC is concered that consumer may not be able to distinguish between the two - native advertising has higher click rates - and has recently published guidance on how advertisers should be transparent if they desire to avoid investigation and enforcement.

Mr. Newman regularly counsel clients on the dangers of producing content that does not comply with applicable consumer protection legal regulations, such as creative that misleads consumers by failing to clearly distinguish between advertising and editorial content.

FTC Enforcement Policy Statement on Deceptively Formatted Advertisements

In December 2015, the FTC released the Enforcement Policy Statement on Deceptively Formatted Advertisements (Policy Statement).

The Enforcement Policy Statement discussed how deception occurs when “an advertisement misleads reasonable consumers as to its true nature or source, including that a party other than the sponsoring advertiser is the source of an advertising or promotional message, and such misleading representation is material.”

Whether an advertisement is misleading is viewed using a reasonable person, objective “net impression” test.  Relevant factors may include, without limitation, the overall appearance of the advertisements; the similarity of written, spoken, or visual style to non-advertising content; and the how the advertisements is disinguishable, if at all, from such other content.

According to the Enforcement Policy Statement, any qualifying information necessary to prevent deception must be conspicuously disclosed up front.  "Disclosures that subsequently inform consumers of a natively formatted ad’s commercial nature after they have clicked on and arrived at another page will not cure any misleading impression created when the ad is presented in the stream of a publisher site.”

Importantly, not all advertisements formatted like non-advertising content are likely to mislead consumers acting reasonably under the circumstances.  The Enforcement Policy Statement discusses that some advertisemetns may be obiovus in their promotional nature to reasonable consumers.  Consult an experienced FTC native advertising guidelines lawyer for assistance ensuring compliance with applicable native advertising legal regulations.

Native Advertising: A Guide for Businesses

In December 2015, the FTC also released Native Advertising: A Guide for Businesses.  The Guide applies the principles found in the Policy Statement to native advertising.  Both the Endorsement Policy Statement and the Native Advertising Guides are instructive regarding how the FTC enforces its native ad legal regulations.

The Business Guide offers numerous examples of when businesses are required to disclose that content is native advertising, along with advice on how to ensure that such disclosures are "clear and prominent."

When considering whether to disclose content as native advertising, marketers should consider numerous factors, including the following:

• Advertisers should not utlilize “deceptive door openers” to persuade consumers to view advertising content.  Advertisers are required to ensure that native advertisements are identifiable as promotional prior to consumers arriving at the main advertising page.
• The more a native advertisements is similar in format and topic to content on a publisher’s website, the more likely that a disclosure will be necessary to prevent consumers from being mislead.  In that instance, disclosures are needed both on the publisher’s site and the click- or tap-into page on which the complete ad appears, unless the click-into page is obviously an ad.
• News feeds, content recommendation widgets and other alternative ways for advertisers to disseminate consumer content are governed by the same principles of transparency and disclosure.
• Disclosures may required where native advertisements are incorporated into content.
• Advertisers should consider the circumstances in which native ads are presented to consumers when assessing hether consumers are likely to understand a native ad is advertising,
• Advertisers should ensure that non-paid search listings for a native advertisement do not imply to consumers that it is something other than an ad.

Dot Com Disclosures: How to Make Effective Disclosures in Digital Advertising is information with respect to how to make native ad disclosures.  Consider proximity, placement, prominence and clarity.

• Disclosures should appear on the main page of the publisher website where they are unavoiable and the promotional content is easy to identify.
• Disclosures should be placed in front or above the native ad headline.
• Disclosures may need to appear on an image or graphic.
• A single disclosure that relates to more than one native ad should also use visual cues to clarify that the disclosure applies to each advertisement in a group.
• Disclosures must not be removed when native ads are republished by third-parties.
• Disclosures should be placed as close as possible to where consumers will look first once consumers arrive on the click- or tap-into page where the complete native ad appears.
• In multimedia adverts, a disclosure should be made to consumers prior to receiving the advertising message.
• Disclosures shoudl alwasy be clear, conspicuous, unavoidable, noticeable, understandable and prominent (e.g., “Ad,” “Advertisement,” “Paid Advertisement,” “Sponsored Advertising Content,” or similar variations).

Consult an FTC Native Advertising Guideline Lawyer to Review News Publisher Agreements

If you want to utilize native ads with new publishers, your written agreements are important.  Native ads need to be transparent.  Native advertising that is deceptive and likely to materially mislead a consumer about its commercial nature because it masks that it comes from a party other than the sponsoring advertiser can lead to contract disputes and FTC enforcement.  Richard Newman works with advertisers to carefully review the FTC Policy Statement and the Native Ad Business Guide to consider the substance and impression of ads, and necessary disclosures designed to ensure that consumers can differentiate advertising from editorial content.