The FTC and Deceptive Advertising: Is there a Biennial Trend?

At the end of December 2015, the Federal Trade Commission (the “FTC”) issued a policy statement to provide guidance and examples of how to avoid deceptive advertising in native ad placements (the “2015 Policy Statement”). The FTC defines native advertising as digital advertising or promotional content “that bears a similarity to the news, feature articles, product reviews, and entertainment that surrounds it online.” In other words, “native advertising” is that which is similar to and often indistinguishable from independent editorial material and other online content that is not advertising. The 2015 Policy Statement also states that advertisements or promotional messages are deceptive and likely to violate Section 5 of the FTC Act, if they convey to consumers expressly or by implication that they're independent, impartial, or from a source other than the sponsoring advertiser, suggesting, in other words, that the promotional content is something other than ads.