We have been closely following the evolution of “native advertising” and the regulatory response since before the FTC’s Workshop “Blurred Lines: Advertising or Content?” over two years ago. Applying traditional FTC truth-in-advertising principles, we have recommended how to avoid deception claims by the FTC or the NAD by providing clear and conspicuous disclosure that advertisements with the look and feel of editorial content are ads or that an advertiser otherwise has a material connection to the content.

Just before Christmas last week, the FTC finally issued its long-awaited guidance on native advertising, “Enforcement Policy Statement on Deceptively Formatted Advertisements” (the “Native Ads Policy Statement”). The Native Ads Policy Statement explains how the FTC applies its long-standing consumer protection standards in the native context and how businesses can provide transparency in their native ads to avoid running afoul of the FTC’s antideceptive rules. The Policy Statement reaffirms what we have been advising for years — transparency is necessary to avoid deception, and if consumers are misled regarding commercial messaging, the FTC can prosecute for a violation of Section 5 of the FTC Act, which prohibits false or misleading commercial practices. On the same day, the FTC also issued a supplemental “Native Advertising: A Guide for Businesses,” (the “Native Ads Business Guide”) which provides informal guidance from FTC staff on how to apply the Native Ads Policy Statement in routine digital advertising practices.