- August 29, 2019
- Posted by: The Blacklist Alliance
Main Page Advertising Guidelines
Deceptive Door Openers: When a native ad appears on the main page of a publisher site or is republished in other media, it commonly consists of a headline, often combined with a thumbnail image and a short description, which, if clicked or tapped, leads to additional advertising content. Under FTC law, advertisers cannot use “deceptive door openers” to induce consumers to view advertising content. Thus, advertisers are responsible for ensuring that native ads are identifiable as advertising before consumers arrive at the main advertising page. In addition, no matter how consumers arrive at advertising content, it must not mislead them about its commercial nature..
Consider the Ad as a Whole: In assessing whether a native ad presented on the main page of a publisher site is recognizable as advertising to consumers, advertisers should consider the ad as a whole, and not just focus on individual phrases, statements, or visual elements. Factors to weigh include an ad’s overall appearance; the similarity of its written, spoken, or visual style or subject matter to non-advertising content on the publisher site on which it appears; and the degree to which it is distinguishable from other content on the publisher site. The same assessment applies to any click- or tap-into page – the page on which the complete ad appears. .
- The Winged Mercury Company sells running shoes. An ad for the company’s flagship shoe appears on a financial news site. The ad contains an image of the shoe, the headline “Run Fast, Run Smart, Run Winged Mercury,” and a hyperlink to learn more about Winged Mercury shoes’ innovative shock absorption. The color scheme, font, and graphics of the ad look like the format of the financial news that appears on the site. However, the slogan “Run Fast, Run Smart, Run Winged Mercury” together with the message to learn more about Winged Mercury shoes’ shock absorption likely convey to consumers the commercial nature of the content. In addition, the subject matter of the ad differs substantially from the financial news on the site. Therefore, a specific disclosure that the content is an ad is probably not necessary, absent extrinsic evidence to the contrary.
- Fitness Life, an online health and fitness magazine, features articles about exercise, training advice, and product reviews. An article on Fitness Life’s main page is titled “The 20 Most Beautiful Places to Vacation.” The article displays images in a scrolling carousel of beautiful spots for fitness enthusiasts to visit. The Winged Mercury Company paid Fitness Life to create this article and publish it on Fitness Life’s site. The article says it is “Presented By” Winged Mercury and includes an image of the company’s logo. Although Winged Mercury’s sponsorship of the article is a form of advertising, the article itself is not, as it does not promote any of Winged Mercury’s products. It only contains images of places where readers – including potential Winged Mercury customers – might like to visit. Thus, the article does not need to be identifiable as an ad before or after consumers click into it.
- A kitchen cabinet company paid an online lifestyle magazine, Styling Home, to create and publish an article entitled, “10 Must-Haves for a Great Kitchen.” The article, which displays a series of images depicting well-designed kitchens, appears in the same layout as other articles on the Styling Home site. Most of the images in the article depict and promote the sponsoring advertiser’s products. Thus, the article is an advertisement. The ad’s format, however, is likely to mislead consumers to believe it is an ordinary Styling Home article and reflects the independent views of the Styling Home writer, and not those of the sponsoring advertiser. Therefore, a clear and prominent disclosure of the article’s commercial nature is necessary.
Inserted Ad Guidelines
The more a native ad is similar in format and topic to content on the publisher’s site, the more likely that a disclosure will be necessary to prevent deception. Furthermore, because consumers can navigate to the advertising without first going to the publisher site, a disclosure just on the publisher’s site may not be sufficient. In that instance, disclosures are needed both on the publisher’s site and the click- or tap-into page on which the complete ad appears, unless the click-into page is obviously an ad.
- The Winged Mercury Company disseminates an ad on Fitness Life, the online magazine described in Example 2. The ad is similar in format and content to regular articles on the site. The headline “Running Gear Up: Mistakes to Avoid” appears next to a photo of a runner. In addition to other training suggestions, the article recommends Winged Mercury shoes for injury prevention. Consumers can access the article either from the Fitness Life main page or directly without viewing that page. In this instance, consumers are likely to conclude that the article was written by a Fitness Life journalist and reflects the journalist’s independent views. To prevent consumer deception, a clear and prominent disclosure of the ad’s commercial nature on the main page of the publisher’s site is necessary. In addition, because consumers can access the article without clicking through from the Fitness Life main page, the ad on that click-into page also should be clearly and prominently identified as commercial.
- Fitness Life publishes an article entitled “The 20 Most Beautiful Places to Vacation.” No sponsoring advertiser paid Fitness Life to publish the article. However, a resort hotel pays Fitness Life to display a photo of its beach resort as the twenty-first image displayed in the article. The photo has the same look and feel as the images featured in the article. There is no need to disclose to consumers on the Fitness Life main page that the article is accompanied by advertising. However, because the photo appears to be part of the article rather than an advertisement, a clear and prominent disclosure of the photo’s paid nature on the click-into page is likely necessary.
Ads Inserted Into News Fees or Recommendations
The digital marketplace offers alternative ways for advertisers to disseminate content to consumers, including things like news feeds and content recommendation widgets. The same principles of transparency and disclosure apply.
- Newsby is an online magazine featuring stories about health, technology, science, and business. A headline published in Newsby’s feed reads “Making Cleaning Fun: How Technology Has Changed Housekeeping” with the subheading, “Vacuum Cleaners are as popular today as when first introduced in the 1800s.” The text and an accompanying image are formatted like those of the other articles in Newsby’s feed and, if tapped, lead to an infographic with facts about vacuum cleaners, including a list of the “coolest innovations.” One of the listed innovations is “Dirt Pulverizer” technology, which purportedly not only picks up dirt, but also cleans the air. Appliance company Machine-Clean Vacuums, which is the exclusive seller of “Dirt Pulverizer” vacuums, paid Newsby to create and publish the article on its site. When viewed in the feed of Newsby’s site, consumers are likely to interpret the Machine-Clean Vacuums ad as an independent story impartially reporting on information relating to vacuum cleaners, and not an ad developed and published on behalf of a sponsoring advertiser. Thus, effective disclosures informing consumers of the ad’s commercial nature – both in the site’s feed and on the click-into infographic – are necessary to prevent deception.
- A content recommendation widget included on different publisher sites displays links to external pages. One site on which these third-party links are placed is Newsby. On the Newsby site, these links are formatted to look like news headlines and are grouped together in a box with headings like “More Content for You,” or “From Around the Web.” One of the headlines appearing in the box is for the Winged Mercury ad described in Example 4, “Running Gear Up: Mistakes to Avoid.” The similarity of the Winged Mercury ad’s format to the type of headlines Newsby publishes on its site, combined with phrases like “More Content for You,” or “From Around the Web,” is likely to lead consumers to believe it is an independent news story, and not from the sponsoring advertiser. Thus, before consumers click to access the Winged Mercury content on the Fitness Life site, a clear and prominent disclosure is necessary to inform them of its commercial nature. As discussed in Example 4, the click-into page on the Fitness Life site also should disclose the commercial nature of the content.
- An article published in Styling Home, the online lifestyle magazine referred to in Example 3, reviews family vehicles and ranks the NuvoTrek as the best hybrid. The car company that manufactures the NuvoTrek did not pay Styling Home to publish the original article, but wants to promote the article, given the favorable review of its car. The car company pays a content recommendation widget to integrate a link to the article into a popular car magazine’s site. The article itself is not advertising. However, the car company’s dissemination of the article through the content recommendation widget is a form of advertising, and thus the company has an obligation to ensure that any claims the article conveys about its car are truthful, not misleading, and substantiated. Also, to the extent that the article headline’s presentation on the site misleads consumers to believe that a link to the content is included or featured based on the independent judgment of the car magazine’s editors, and not based on payment by the sponsoring advertiser, a failure to effectively disclose its paid nature is likely deceptive.
Native ads also can be integrated into content, including entertainment programming and video games. In some instances, consumers are likely to understand that a sponsoring advertiser paid for the product integration. In other instances, a disclosure may be necessary to avoid deceiving consumers.
- A video game immerses a player in a virtual world. While exploring part of the virtual world, a player sees billboards advertising actual products. The marketers of the advertised products paid the game designers to include the ads in the game. That billboards are advertisements is apparent to consumers. To the extent that the billboards are for actual products, consumers are likely to attribute the ads to the sponsoring advertisers and no disclosure is necessary. However, the sponsoring advertisers would be liable for any deceptive product claims on the billboards.
- The same virtual world game in the previous example integrates branded products in other ways; for example, game characters wear a specific sunglass brand, drink a particular brand of beverage, and patronize a particular donut shop. The sponsoring advertisers paid the game developer to include their branded products in the game. However, the game conveys no objective claims about the various branded products. Even though consumers may not realize that the sponsored advertisers paid for their branded products to appear, disclosure of this paid product placement is not necessary to prevent consumer deception because whether the branded products appear in the game because of payment by the sponsoring advertiser or because of the video game developer’s creative judgment is not likely to be material to consumers.
- A game app tests players’ skills to survive in the wilderness and offers a choice of supplies and equipment in each game phase. When players tap to make a choice, a box appears containing a selection of items – for example, a flashlight, a rope, and a hatchet. Each item is accompanied by a short message – for example, the phrase “Light your path” with the flashlight. Among the items players can select is a bar of soap identified by brand name with the text “Clean up.” If tapped, the soap icon takes the player out of the game and into the soap manufacturer’s branded game app. Based on consumers’ customary use of the game and the similarity of the soap to other items players can select in the game, consumers might not recognize the icon as an ad before tapping and leaving the game. Because the in-app ad’s format misleads consumers in this respect, a clear and prominent disclosure informing them of the icon’s commercial nature is necessary before consumers tap on it.
- On its website, a home improvement TV show features “do it yourself” videos hosted by an expert builder who provides advice on home projects. A stain manufacturer, ZYX Paints, pays the show to produce and publish on the home improvement show’s site a video on building a wood deck. In the video, the show’s expert builder uses a ZYX Paints stain and recommends it to protect and maintain the deck. The ad’s look and feel closely resembles other videos posted on the home improvement show’s site, which customarily are unpaid. In this situation, consumers are likely to perceive the video as independent content reflecting the impartial opinion of the expert builder host or the show’s writers, and would not likely attribute it to the sponsoring advertiser. An effective disclosure informing consumers of the video’s commercial nature before they play it is necessary to prevent consumer deception.
- Instead of the video described in the previous example, the home improvement show is paid by ZYX Paints to create and publish on the show’s site a video that shows the expert builder host using ZYX Paint stain on the deck. However, rather than the expert builder expressly recommending the product to protect and maintain the deck, the camera zooms in on the product’s label. Whether an effective disclosure informing consumers of the video’s commercial nature would be necessary depends upon reasonable consumer expectations. In this particular situation, consumers would likely interpret the use of the branded stain product to be the expert recommendation and opinion of the expert builder host or the show’s writers, rather than a paid inclusion. In that case, a clear and prominent disclosure of the video’s commercial nature is necessary before consumers play it.
Ads in Social Media or Email
Within digital media, consumers can encounter native ads in a wide variety of settings, including in social media and email. In some cases, advertisers also facilitate the republication or “sharing” of native ads by others, for example, by including social media plugins. In evaluating whether consumers are likely to understand a native ad is advertising, it is important that advertisers consider the particular circumstances in which native ads are presented to consumers. These circumstances include consumers’ ordinary expectations based on their prior experience with the media in which the ads appear, as well as how they consume content in that media.
- The Winged Mercury article published in Fitness Life, “Running Gear Up: Mistakes to Avoid,” described in Example 5 includes buttons so that readers can post a link to the article from their personal social media streams. When posted, the link appears in a format that closely resembles the format of links for regular Fitness Life articles posted to social media. In this situation, the ad’s format would likely mislead consumers to believe the ad is a regular article published in Fitness Life. Advertisers should ensure that the format of any link for posting in social media does not mislead consumers about its commercial nature.
- Gormella uploads humorous videos to her dedicated channel on a popular video-sharing platform and has cultivated a significant social media following. Among her videos is one she created for a snack food company to promote its new cracker, Salt-Zs. The video, “Crackering Up in My Local Supermarket,” includes a thumbnail image of Gormella laughing in a grocery store aisle. In the video, Gorgella starts out in the supermarket aisle and is magically transported to various locales where she talks to people about Salt-Zs. Once consumers view the video, they are likely to identify it as an advertisement and understand that the sponsoring advertiser paid Gormella to promote and endorse its branded product. Nevertheless, before watching the video, consumers likely would not expect it to be advertising, given their experience with other videos she had posted. Thus, the video’s commercial nature should be clearly and prominently disclosed before consumers view it.
Ads in Search Results
Yet another setting in which consumers may come upon native ads is in non-paid search engine results. Advertisers should take steps to ensure that any non-paid search listings for a native ad do not suggest or imply to consumers that it is something other than an ad.
- A text link and thumbnail image for the an ZYX Paints video appears in the non-paid search results returned in response to consumers’ queries using a search engine. The textual link to the video reads “Building a Deck: 5 Steps for Success” and includes the name of the home improvement show, but does not mention ZYX Paints. In this example, based on consumers’ customary experience using search engines, they ordinarily would associate a video presented in this manner to the home improvement program and not to a sponsoring advertiser. The advertiser should ensure that any link or other visual elements, for example, webpage snippets, images, or graphics, intended to appear in non-paid search results effectively disclose its commercial nature.