Where’s the Ad? That Game Has Rules

Here at TINA.org we like to flag posts that are sponsored or native content, asking our readers, “Can you spot the ad?” because, frankly, it’s getting harder to distinguish paid marketing from objective editorial content. In fact, it could be becoming its very own parlor game for the 21st century.

That’s because advertisers, fighting all sorts of ad-blocking and ad-skipping technology, are trying to be increasingly creative about how to present their products and services. But the game of can you spot the ad has rules — as the FTC recently reminded the business world in its recent policy statement and guide to businesses.

It’s not that blending ads, disguising ads, masking ads — however you want to phrase it — is new. Indeed, the FTC makes a point of noting that its first sponsored content case dates back to 1967 and involved a newspaper column reviewing cuisine of local restaurants that was really a paid ad. In the 1980s, the agency found that a bookseller had violated the FTC Act through a deceptive direct-mail ad formatted to appear as a book review from a magazine. After the FCC removed its ban on program-length commercials in the 1980s, the FTC went after a few that were formatted to look like objective consumer programming and requiring that infomercials slap a big “Paid Advertising” disclosure at the beginning of the commercial and during the ordering portion of the commercial.

Now, sponsored ads are taking so many new forms in the digital world that it’s getting harder to spot them than it is to find Waldo. Sponsored content appears in news publications, video games, product reviews, email, online comment forums, personal blogs, Twitter and Facebook posts, web search results, recommended web links, celebrity endorsements on social media and infographics, just to name a few. (Perhaps the question really is where doesn’t an ad appear these days?)

But what consumers need to know is that while ads are popping up everywhere in many different formats, the law about sponsored content is pretty simple. In its policy statement, the FTC noted that sponsored messages are deceptive if they mislead consumers into believing they are independent, impartial, or not from a sponsoring advertiser itself. Specifically, the agency notes that sponsored content that is not prominently represented as such is problematic because it can lead consumers to give greater credence to advertising claims or to interact with advertising with which they otherwise would not have interacted.

In evaluating whether an ad’s format is misleading, the FTC considers the net impression the advertisement conveys to reasonable consumers including overall appearance and similarity of the ad content to the written, spoken or visual style of the non-advertising content.

The agency also signaled it was not happy with some of the tags being used to supposedly identify sponsored.  (There are so many words for sponsored content these days it could fill its own mini dictionary but among the monikers are “promoted,” “promoted by,”  “promoted stories,” “brought to you by,”  “sponsored by,” “sponsored links,” “promoted stories,” “suggested posts,” and “recommended links.”) Among the phrasing the FTC would like to see companies use is “Ad” (Great idea!) or “Advertisement” or “Paid Advertisement.”

The FTC said identifiers had to be:

That all seems pretty simple, right? But under these guidelines, 70 percent of publishers are not in compliance, according to Todd Krizelman, co-founder and CEO of Media Radar. In fact, about one-quarter of websites run native ads without any mention of a sponsor.

That means we’ll be very busy this year calling out ads that don’t look like ads and we’ll need your help. If you are having trouble deciphering if something is an ad let us know. We’ll look into it. Consider it Operation #AdorNot.