Contemporary Advertising
By Mark Land, MS, RAC-US, AAHP President
It is not an exaggeration to say that advertising has evolved delivery, scale, and targeting exponentially with the emergence of digitally enabled content. Modern advertisers are better equipped to deliver content to prospective customers with pinpoint accuracy, frequency, and intrigue like never before. One of the things that makes advertising so much more intriguing is that today it is delivered often by people like you and me. Influencers are ubiquitous in advertising today. All of this being said, it can be tricky to know and follow the modern rules for advertising. Below are some basics.
The general principles of advertising law apply to online advertising, but new issues arise almost as fast as technology develops. Most recently, new issues have arisen concerning space-constrained screens and social media platforms.
- Advertising must be truthful and not misleading.
- Advertisers must have evidence to back up their claims (“substantiation”).
- Advertisements cannot be unfair.
- Spokespeople including influencers may not make claims in advertising not made in product labeling.
- Spokespeople must be users of the product and express their honest opinions.
- Disclosures, if used, in advertising must be proximate to the triggering claim.
In short, deception in any form is not allowed. Digital deception is an increasing problem. Marketers may be tempted to follow the lead of ruthless digital pirates.
Recently the Federal Trade Commission (FTC) published a press release explaining1:
As digital deception grows in sophistication, some companies are wrongly citing the guides to justify practices that mislead consumers online. For example, firms have claimed that they can avoid liability under the FTC Act by burying disclosures behind hyperlinks, a practice that can expose consumers to financial fraud, intrusive surveillance, and other harms.
“We know that some companies are wrongly citing our current guides to justify dark patterns and other forms of digital deception,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “We are looking to update the guides to make clear that online tricks and traps will not be tolerated, and we look forward to hearing from the public on this initiative.”
FTC recently published its Health Products Compliance Guidance,2 which will be the subject of an upcoming AAHP newsletter article.
As a rule, always consult a qualified expert when making advertising decisions.
References
1. United States Federal Trade Commission. “FTC Looks to Modernize Its Guidance on Preventing Digital Deception.” June 3, 2022. https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-looks-modernize-its-guidance-preventing-digital-deception
2. United States Federal Trade Commission. “Health Products Compliance Guidance.” December 2022. https://www.ftc.gov/business-guidance/resources/health-products-compliance-guidance