When an Article Is Actually an Advertisement

Answer first: misleading people about who wrote it is its own problem

The FTC's staff guide on native advertising states the principle in one line: it is deceptive to mislead consumers about the commercial nature of content. Advertisements or promotional messages are deceptive if they convey to consumers expressly or by implication that they are independent, impartial, or from a source other than the sponsoring advertiser — in other words, that they are something other than advertisements.

The guide explains why that is treated as a harm rather than a formality. Knowing that something is an advertisement likely will affect whether consumers choose to interact with it and the weight or credibility consumers give the information it conveys.

Then it draws the conclusion that surprises people. The FTC considers misleadingly formatted advertisements to be deceptive regardless of whether the underlying product claims that are conveyed to consumers are truthful.

So this is not a substantiation question wearing different clothes. An article can carry accurate, fully supported statements about a product and still be a problem because of what its format says about where it came from.

The guide describes itself as informal staff guidance supplementing the Commission's Enforcement Policy Statement on Deceptively Formatted Advertisements, and says on its own face that it does not provide a safe harbor from potential liability under Section 5 of the FTC Act.

How the guide decides whether a disclosure is needed at all

Not every commercially sponsored item needs a label. The guide sets out a graduated answer: some native advertisements may be so clearly commercial in nature that they are unlikely to mislead consumers even without a specific disclosure; in other instances a disclosure may be necessary; and if a disclosure is necessary to prevent deception, it must be clear and prominent.

The factors it names for that assessment are an advertisement's overall appearance, the similarity of its written, spoken or visual style or subject matter to non-advertising content on the site where it appears, and the degree to which it is distinguishable from other content on that site. The general rule it derives is that the more a native advertisement is similar in format and topic to content on the publisher's site, the more likely that a disclosure will be necessary.

Its own worked examples bracket the range. A shoe advertisement on a financial news site, styled like the site's financial content but carrying the brand's slogan and an invitation to learn about the shoe's shock absorption, probably needs no specific label — the commercial nature comes through, and the subject matter differs substantially from the surrounding content.

By contrast, an article on a lifestyle magazine titled with a list of kitchen must-haves, laid out like the site's other articles, most of whose images depict and promote the sponsoring advertiser's products, is an advertisement whose format is likely to mislead consumers into believing it is an ordinary article reflecting the independent views of the site's writer. There, the guide says a clear and prominent disclosure of the commercial nature is necessary.

A third example is the useful boundary case. A sponsored article about beautiful places to visit, carrying a company's logo and a presented-by line, is a form of advertising in the sense that the sponsorship is paid — but the guide says the article itself is not an advertisement, because it does not promote any of the sponsor's products. On those facts it does not need to be identifiable as an advertisement.

The door-opener rule, and why one label is often not enough

The guide's structural point is that the decision to click is itself part of the transaction. Under FTC law, it says, advertisers cannot use deceptive door openers to induce consumers to view advertising content, and advertisers are responsible for ensuring that native advertisements are identifiable as advertising before consumers arrive at the main advertising page. It adds that no matter how consumers arrive at advertising content, it must not mislead them about its commercial nature.

That has a practical consequence the guide states directly. 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. Disclosures are needed both on the publisher's site and on the click- or tap-into page where the complete advertisement appears, unless that page is obviously an advertisement.

The same reasoning extends to how the item travels. Advertisers should maintain disclosures when native advertisements are republished by others in non-paid search results, social media, email or other media. In non-paid search results, the guide says consumers are more likely to notice a disclosure placed at the beginning of the title tag; for links posted or shared in social media or email, it recommends a disclosure at the beginning of the URL.

The guide also covers the recommendation strip at the bottom of an article. Where third-party links are formatted to look like the host site's headlines and grouped under headings such as more content for you or from around the web, the similarity of format combined with those phrases is likely to lead consumers to believe the item is an independent news story rather than content from a sponsoring advertiser, and a clear and prominent disclosure is necessary before consumers click.

Where a label has to sit, and how big it has to be

The guide is unusually specific about placement, and the specificity is worth reading because it describes how people actually scan a page.

Its core instruction is to place disclosures in front of or above the headline of the native advertisement. It explains the alternatives it is ruling out: on a site read left to right, consumers are less likely to notice disclosures positioned to the right of the advertisements to which they relate; and where native advertisements are inserted into a vertical stream, placing a disclosure below one increases the risk that consumers will click without seeing it.

Where the focal point is not text, the label may have to move onto the image. The guide gives the example of a video-sharing channel, where consumers deciding what to watch may pay little attention to written descriptions and instead look at thumbnails; there, a disclosure placed directly on the thumbnail image itself is most likely to be effective.

For groupings, it rules out a single shared label where the group mixes advertising and non-advertising items, because consumers are not likely to know which items the disclosure relates to. In that case, native advertisements should be individually labeled. Where one disclosure does cover several advertisements, the guide says other visual cues are necessary — background shading with a clear outline, or a distinct border setting the advertisements off from other items.

On prominence, the requirements are ordinary and stated plainly. Disclosures should be large and visible enough to be readily noticed, in a font size and color consumers can easily read on the screen, in a shade that contrasts strongly with the background. Background shading used to differentiate advertisements should be sufficiently saturated to be noticed, and the guide suggests adding a visual cue such as a prominent border in case consumers cannot see color differences.

For multimedia, a disclosure should be delivered before consumers receive the advertising message it relates to — but the guide warns against putting it too early, noting that where an advertisement is a small part of longer programming, a disclosure at the beginning may not communicate that later content is an advertising message.

The wording, including the words the guide says not to use

The guide is direct about vocabulary, and this is the part with the sharpest edges. It says disclosures are not effective unless consumers understand them to mean that native advertisements are commercial advertising, and that they should be in plain language that is as straightforward as possible, in the same language as the predominant language in which the advertisement is presented.

It lists what to avoid: technical or industry jargon; different terminology to mean the same thing in different places on a publisher site; the same terminology to mean different things on a site; terms that customarily have different meanings to consumers in other situations; unfamiliar icons or abbreviations; and company logos or brand names unaccompanied by a clear text disclosure.

It then names terms likely to be understood — advertisement, advertising, paid advertisement, sponsored advertising content, or some variation.

And it names terms not to use. Advertisers should not use terms such as promoted or promoted stories, which the guide says in this context are at best ambiguous and potentially could mislead consumers that advertising content is endorsed by a publisher site.

It adds a further caution about attribution formulas. Depending on context, consumers reasonably may interpret terms such as presented by, brought to you by, promoted by, or sponsored by a named company to mean that a sponsoring advertiser funded or underwrote but did not create or influence the content. That is a real distinction, and a reader can use it: those phrases describe who paid, not necessarily who wrote.

It closes with two more points. Terminology should be consistent across a site, because inconsistent labels increase the chance of misunderstanding. And company logos and names on their own are not likely adequate to signal that content is commercial advertising.

Who this reaches, and how to use it as a reader

The guide's final note extends the scope beyond the brand. The underlying policy statement does not apply just to advertisers; in appropriate circumstances the FTC has taken action against other parties who helped create deceptive advertising content, for example advertising agencies and operators of affiliate advertising networks. Everyone who participates directly or indirectly in creating or presenting native advertisements should make sure they do not mislead consumers about their commercial nature.

The test the guide sets for itself is performance rather than form. Whether a disclosure meets the standard will be measured by whether consumers recognize the native advertisement as an advertisement, and it says advertisers should improve their disclosures if there are indications that a significant minority of reasonable consumers do not notice, process or comprehend them.

For someone reading a health or weight-management article that recommends a product, the questions the guide implies are concrete. Is there a label, and does it sit in front of or above the headline rather than beneath it or off to the right. Does the label use one of the words the guide names as understood, or one it names as ambiguous. If the phrase is a presented-by or brought-to-you-by construction, does anything on the page say who actually wrote the piece. And in a recommendation strip, is each item labeled, or is one label standing over a mixed group.

None of that decides whether a particular page is lawful. That is a determination on a specific record, and nothing here asserts or predicts one about anyone.