The FTC has released an enforcement policy statement on so called “native” advertising. This development signals that the FTC is about to take cases against advertorials. The FTC probably has even selected characteristics of native ads it wants to bring its first cases against. Expect the first cases to contain violations of all the sections of the statement.
With the memo, it will be difficult for respondents to argue that they lacked notice (whether fair or ascertainable certainty) of the FTC’s position on advertorials.
Much of the memo recounts existing cases and law. The language on disclosures however is new and interesting. In its guidance to businesses, the FTC advises:
Terms likely to be understood include “Ad,” “Advertisement,” “Paid Advertisement,” “Sponsored Advertising Content,” or some variation thereof. Advertisers should not use terms such as “Promoted” or “Promoted Stories,” which in this context are at best ambiguous and potentially could mislead consumers that advertising content is endorsed by a publisher site. Furthermore, depending on the context, consumers reasonably may interpret other terms, such as “Presented by