Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 47 Have you paid to place an article about the features and benefits of your product or product category, or that disparages a competitor’s product? If you have, you must likely disclose your sponsorship. • Product placement on television or in movies does not always trigger a disclosure obligation. If the product is shown as selected over other products or providing a benefit to users, this likely goes beyond product placement and triggers a need to disclose. Similarly, if the product is being used by an “expert” (e.g., home improvement professional), a disclosure may be needed. • Have you paid to include a link to news about your brand on a publisher’s website? Disclosure that the link is sponsored is required, and if the news you are linking to is also native advertising, then disclosure should appear in the article as well. • How have you accomplished disclosure? This can be done in multiple ways, including a statement in the article itself that you were involved in the creation or curation of the content. It can also be done with conspicuous headers that make it clear that the content is “advertising” or is “sponsored,” sometimes with background shading or borders to further distinguish the sponsored content. Disclosure at the end of an article or at the bottom of a web page is not sufficient. The Federal Trade Commission’s (FTC) preference is top left above the byline. For video content, the disclosure should be in the video itself and not just in the description at the bottom. • Do you partner with an advertising widget content provider or service that places links to your content on other third‑party publisher websites? If so, make sure the links used to describe your content are accurate and state unmistakably that readers are navigating to advertising content. • If you are using agencies or other third parties to help with your native advertising strategy, make sure that you monitor their compliance with disclosure and other obligations as well. Regardless of your company’s definition, the questions above will help untangle an advertiser’s disclosure obligations. Even more information can be found in the FTC’s “Native Advertising Enforcement Statement.”