ADventures in Law

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In addition to legal analysis, legislative developments, and some general whimsy, in this blog we highlight commentary from regulators and industry figures in the advertising law space. We had the opportunity to hear from several such individuals last week at the ANA Masters of Advertising Law Conference.

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One panel featured the Associate Director of Advertising Practices at the Federal Trade Commission, Serena Viswanathan, and the Vice President for the National Advertising Division of BBB National Programs, Laura Brett. Ms. Viswanathan disclosed as part of the presentation – and we would be remiss not to include the same here – that the opinions expressed were her own and not those of the FTC.

The moderators on the panel were our very own Amy Mudge and Daniel Kaufman. Amy and Daniel led their celebrity guests through a discussion of several hot topics, and we’ve highlighted some of the most notable takeaways below.

Blurred or Stealth Advertising<ul><li>What is it? When advertising is included in media or entertainment without a clear delineation between the ad and the content.</li></ul>
<ul><li>What did the experts say?</li></ul>
<ul><li>Ms. Brett noted that the NAD is actively looking to bring monitoring cases in this area and that if advertisers are using affiliate links, they should look at previous NAD decisions.&nbsp; In one case, the NAD found the use of affiliate links were not “advertising” because the editorial team recommended the product(s) independent of any input from the business team on affiliate marketing. Ms. Brett also noted that the NAD believes influencer marketing to teenagers is an underserved area.</li></ul>

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Junk Fees<ul><li>What are they? Fees added on to a product or service that are often disclosed late in the purchase process.</li></ul>
<ul><li>What did the expert say?</li></ul>

Aspirational Claims<ul><li>What are they? Aspirational claims are statements about what a company intends to do, most commonly used for environmental, social, and corporate governance (ESG) issues.</li></ul>
<ul><li>What did the expert say?</li></ul>

Social Media<ul><li>What is it? You know this one.</li></ul>
<ul><li>What did the expert say?</li></ul>

Other Highlights<ul><li>The NAD and FTC believe that causal claims between a product and human health effects generally require randomized and controlled human clinical trials.</li></ul>
<ul><li>Don’t collect reviews in a way that limits responses to individuals who had a positive experience.</li></ul>

Takeaways from a Panel with the FTC and NAD