The FTC has issued enforcement policies regarding the new wave of advertising to his America. And whether you are aware of it or not, you have been subjected to deceptive advertising and native advertisement in an increasing frequency since 2010 (although it began decades ago). The FTC believes that “advertising and promotional messages that are not identifiable as advertising to consumers are deceptive if they misleading consumers into believing they are independent, impartial, or not from the sponsoring advertiser itself.” (FTC statement entitled: “Enforcement Policy Statement on Deceptively Formatted Advertisements“)
What are these deceptively formatted advertisements?
These are the messages integrated into written (social media, blogs, mortgage relief solicitations from governmental-sounding companies), video, and audio broadcasts that is presented as non-commercial content. The FTC considers the ‘net impression’ of the advertisement in determining whether it misleads the consumer (including its format).
For example: You have encountered a product review or two on your favorite fashion or technology blog. Sometimes they are difficult to distinguish (format, native) from the rest of the blog, since they are written like the other articles within the blog. The authors have been paid and/or given the product free. This example can stretch to audio broadcasts and video broadcasts as well, how often have you listened to a radio program that discusses the release of a tv show or movie (interviews with the lead actress or actor), or watched your favorite morning news show and the hosts are reviewing the latest fashion or gadget? They appear as ‘news stories’ but they are not.
The issues: For the same reason, but probably for significantly lower stakes, that people feel skeptical when large campaign contributions are made to a political candidate (usually ones you disagree with) in a race to an electable position; the FTC feels these ‘advertorials‘ are biased and are likely to mislead consumers. After all, a blog author is incentivized to write neutral or positive reviews so manufacturers continue to send money and products.
Deception is deception: Although this advertorial strategy isn’t now, Consumers have increasing power to block, skip, or avoid advertisements; thus, advertisers are turning more frequently to this method of slipping in undetected. However, irrespective of the reasoning or justification, to the FTC, deception is deception.
The new policy release by the FTC doesn’t particularly change anything. Rather, it is released as a reminder to advertisers and a ‘heads-up’ to new media publishers (blog authors) that the FTC has taken notice and believes that some activities are deceptive. This is usually a sign that the FTC is preparing to target the practice in several ‘easy-to-win’ cases to make an example, set a precedent and create a deterrence in the future.
If you are an advertiser or more particularly blogger or social media specialist, take notice of this new advisory writing of the FTC. Contact your attorney to discuss how you may remedy or avoid a potential violation.
