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May 29, 2020

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No Blurred Lines: FTC Delivers Clear Native Advertising Guidance

Though adapting to your surroundings can be an admirable quality, the Federal Trade Commission (FTC) considers advertisements that “go native” to be deceptive. On Dec. 21, the FTC released its much anticipated “Enforcement Policy Statement on Deceptively Formatted Advertisements” regarding native advertising.

Native advertising is an advertisement that is dressed up to look like, or mimic, editorial content. The ads can appear in a wide variety of forms, including written narratives, videos, infographics, images, animations, in-game modules, and playlists on streaming services. This formatting blurs the distinction between advertising and non-commercial content, meaning the design, style, and behavior of the digital media is copied such that an ad is indistinguishable from its surroundings.

Though “going native” seemed like a great way to make advertisements blend more fluidly with their surroundings, it is, and always has been, misleading to a reasonable consumer. The FTC has long held the view that advertising and promotional messages that are not identifiable as advertising to consumers are deceptive if they mislead consumers into believing they are independent, impartial or not from the sponsoring advertiser itself.

The FTC simultaneously released “Native Advertising: A Guide for Business” to help companies understand, and comply with, the FTC’s policy statement. This guidance provides examples of when disclosures are necessary to prevent deception and how to make clear and prominent disclosures within the format of native ads. The highlights are:

  1. An advertisement or promotional message shouldn’t suggest or imply to consumers that it’s anything other than an ad.
  2. Some native ads may be so clearly commercial in nature they are unlikely to mislead consumers even without a specific disclosure. In other instances, a disclosure may be necessary to ensure consumers understand the content is advertising.
  3. If a disclosure is necessary to prevent deception, the disclosure must be clear and prominent.

In a nutshell, this FTC guidance follows long-standing truth-in-advertising principles, which is that advertisements and promotional messages that promote the benefits and attributes of goods and services should be identifiable as advertising to consumers.

© 2020 BARNES & THORNBURG LLP

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About this Author

Joan Long, Barnes Thornburg Law Firm, Chicago and Grand Rapids, Intellectual Property and Litigation Law Attorney
Of Counsel (Retired)

Joan L. Long is retired of counsel in the Chicago and Grand Rapids offices of Barnes & Thornburg LLP, where she is a member of the Intellectual Property Department and chaired of the Advertising and Marketing Group. Ms. Long’s practice focused on intellectual property protection and enforcement with an emphasis on Lanham Act compliance and enforcement.

Ms. Long provided clients with advice and evaluation in connection with advertising claims, including assessment of the substantiation for the claim and potential liability for false or...

312-214-4576
Olivia Clavio Intellectual Property Attorney
Associate

Olivia M. Clavio is an associate in the Indianapolis office of Barnes & Thornburg and a member of the firm's Intellectual Property Department. She focuses her practice on advertising and marketing compliance, trademark, copyright, trade dress, right of publicity, trade secret, social media, and unfair competition issues.

Olivia assists companies with advertising claims development, substantiation, and defense. She has also represented clients in advertising matters before agencies such as the Federal Trade Commission (FTC) and the National Advertising Division of the Better Business Bureaus (NAD), and before various courts. Olivia's clients span across a wide range of consumer products and service industries, including agriculture and pest control, computer software, paint products, automotive products, dietary supplements, retail, pet products, and dental products.

Olivia also works extensively with clients in the prosecution of trademark registrations and enforcement of trademark rights in the U.S. and in foreign jurisdictions.

Prior to joining Barnes & Thornburg, Olivia worked extensively in media and advertising, most notably with companies such as Viacom Broadcasting and William R. Powers Advertising in Chicago and Susquehanna Radio and Hirons & Company in Indianapolis.

317-231-6444