“Native advertising”—ads that may blur the distinction between advertising and editorial, video or other content—has been a hot topic in recent years for both marketers and regulators. It is popular with marketers because it is apparently an effective advertising model. The Federal Trade Commission (FTC), on the other hand, contends that it may be deceptive when the advertising content is not readily identifiable to consumers as such, and it has just issued guidance on how advertisers can stay on the right side of the law. On December 22, 2015, the FTC released an Enforcement Policy Statement on Deceptively Formatted Advertisements that focuses in particular on “native” advertising, along with guidance for businesses on native advertising that further fleshes out the FTC’s expectations. The Enforcement Policy Statement defines “natively formatted advertising” as communications “that match the design, style, and…
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