Last week, the Federal Trade Commission issued updated guidelines to ensure businesses don’t mislead consumers when they publish native ads, and the Interactive Advertising Bureau responded by saying the guidelines need clarification and could “impinge on commercial speech protections.” Reading the FTC’s wording and the IAB’s response, I found myself thinking that the byplay sounded awfully familiar.
“In evaluating whether an ad is deceptive, the FTC considers the net impression the ad conveys to consumers,” the FTC wrote in the guidance document. “Because ads can communicate information through a variety of means—text, images, sounds, etc.—the FTC will look to the overall context of the interaction, not just to elements of the ad in isolation."
Remind you of a certain 1964 Supreme Court ruling? In Jacobellis v. Ohio, Justice Potter Stewart famously concurred with his fellow jurists who threw out a judgment against exhibitors of Louis Malle’s film “The Lovers” on the grounds that the Constitution protected all obscenity except “hard-core pornography,” which Stewart said he could not define further beyond “I know it when I see it.” He didn’t see Malle’s film as porn.
While I agree that some clarification might be in order here, I have to say that the FTC has a point. Identifying native ads that violate consumer trust requires context. We all know deceptive ad practice when we see it, and we’ve been seeing it for quite some time. It’s interfering with the work of digital platforms that openly label (and label a second time, and a third) native advertising, and that work is vital to finding engaging ways for brands and organizations to offer readers sponsored content of value to them—content they know from previous experience has been worthy of their time.
It’s a shame that the FTC has had to come out and say that “the watchword is transparency,” but it’s clearly necessary. Somehow marketers who try to trick readers into clicking on poorly or deceptively labeled native ads have not learned that the outcome of the interaction is anger, not brand affinity.
If establishing a we-know-it-when-we-see-it standard succeeds in changing deceptive marketers’ practices, ethical publishers and digital creatives will be grateful. One of the IAB’s concerns was that guidance “not stifle innovation,” but I can’t think of anything that shuts down innovation faster than prolonged discussions about basic issues of trust. It’s time to label—once, twice, thrice per piece—and move on.

About the Author
Stephanie Losee is the Executive Director of Brand Content for POLITICO. Previously she was Managing Editor of Dell, directing Dell’s editorial content strategy and formalizing Dell’s role as a brand publisher. Among other projects, she led the launch of Dell’s Paid Posts as the inaugural brand on The New York Times’ native advertising platform and spearheaded the launch of Dell’s news site, Tech Page One, which was recently expanded to become the brand front door for all of Dell. She is a former writer at Fortune and editor at PC Magazine.
Story by Stephanie Losee

Stephanie Losee is the Head of Communications and Brand at Nova Content Credit. Her previous three roles were Head of Content at VISA Corporate Communication, head of brand content at POLITICO, where she launched the publication’s custom content studio, and Managing Editor of Dell, where she directed Dell’s editorial content strategy. Marketing Insider Group named her a Best Marketing Speaker of 2016 and The Holmes Report named her one of the Top 25 Innovators of 2015. She is a former writer at Fortune and editor at PC Magazine. Stephanie Losee is Chairman of the Jury for the Native Advertising Awards.
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