Mary K. Engle Associate Director for Advertising Practices Federal Trade Commission

1. Drawing the Line Between “News” and Commercial SpeechYale Commercial Speech and the First AmendmentNew York CityJune 3, 2019 Mary K. Engle Associate Director for Advertising Practices Federal Trade Commission The views expressed are the speaker’s own and not necessarily those of the FTC or any individual Commissioner

2. FTC jurisdiction over advertising • FTC Act Section 5 prohibits “unfair or deceptive acts or practices in commerce” • Jurisdiction extends to commercial speech: • Includes speech outside context of traditional advertisements • Does not include political advertising • Guided by Supreme Court’s commercial speech doctrine

3. How to determine if a communication is commercial speech? • FTC v. R.J. Reynolds, 111 F.T.C. 539 (1988) • Advertorial regarding state of science on whether smoking caused heart disease • FTC challenged as deceptive • ALJ ruled not commercial speech • Commission reversed

5. R.J.R. commercial speech factors • Content of the speech: • Whether it contains a message promoting demand for a product/service • Whether it refers to a specific product/service (need not be brand-specific) • Whether it includes info re product/service attributes, e.g., type, price, quality, health effects • Means used to publish speech, including whether it is paid-for advertising • Speaker’s economic or commercial motivation • R.J. Reynolds, 111 F.T.C. 539, 547 (1988)

6. POM Wonderful • FTC complaint against juice seller challenged, inter alia, health claims that company principals made in TV & magazine interviews • ALJ found media interviews did not constitute advertisements • Commission rejected ALJ’s assumption that they had to be advertisements versus commercial speech more broadly • But, Commission declined to decide whether the interviews were commercial speech; evidentiary record insufficient: • How the interviews came to pass • Any understanding withthe media organizations aboutthe interview content

7. POM Wonderful • Commission noted other factors, including: • Means used to publish the speech, including where and to whom disseminated • Promotional nature of the speech, to whom targeted, purpose, intended messages • No one factor determinative and not all need be present • POM Wonderful,115 F.T.C. 1 (2013), aff’d, 777 F.3d 478 (2015)

8. ADT • ADT paid child safety, security, and technology experts to promote ADT Pulse home security system in media interviews and online • FTC challenged the experts’ appearances as deceptive for misrepresenting they were independent reviews by impartial experts and for failing to disclose the experts were paid spokespeople

9. ADT LLC (consent order)

10. Inside Publications/Creaxion • Publisher of Inside Gymnastics magazine, Inside Publications, ran advertorials and social media posts promoting FIT Organic mosquito repellant • Pursuant to agreement with p.r. firm, Creaxion • Highlighted concern re Zika virus & 2016 Rio Olympics • None disclosed they were paid-for advertising by the repellant seller • FTC challenged advertorials/social media posts as deceptive for not disclosing they were ads

11. FIT ORGANIC STEPS UP TO PROTECT FORMER OLYMPIC GOLD MEDALIST FROM MOSQUITOS THAT COULD TRANSMIT ZIKA VIRUS “I was so touched and thankful that Fit Organic reached out to me,” said Patterson-Caldwell, “I’ve been looking for an organic product that would repel mosquitos…Fit Organic Mosquito Repellent is exactly what I was looking for.” Creaxion Corp. (consent order)

12. I was definitely bummed to have made the decision to not go to Rio… because of the threat of the Zika virus… I am so thankful to have found a safe and organic product (FIT Organic) that will ease my worries as mosquito season approaches. FIT Organic steps up to protect former Olympic gold medalist from mosquitoes that could transmit Zika virus Creaxion Corp. (consent order)

13. FTC Business Guide on Native Advertising • Applies only to speech that constitutes commercial speech • Includes examples illustrating what is/is not commercial speech

14. Sponsored non-promotional article(Business Guide Example 2) • Fitness Life, an online health and fitness magazine, features articles about exercise, training advice, and product reviews. An article on Fitness Life’s main page is titled “The 20 Most Beautiful Places to Vacation.” The article displays images in a scrolling carousel of beautiful spots for fitness enthusiasts to visit. The Winged Mercury Company paid Fitness Life to create this article and publish it on Fitness Life’s site. The article says it is “Presented By” Winged Mercury and includes an image of the company’s logo. Although Winged Mercury’s sponsorship of the article is a form of advertising, the article itself is not, as it does not promote any of Winged Mercury’s products. It only contains images of places where readers – including potential Winged Mercury customers – might like to visit. Thus, the article does not need to be identifiable as an ad before or after consumers click into it. • Take-away: Because the article is non-promotional, it need not be identifiable or labeled as an ad. • NB: The use of the term “Presented By” here is intended to be descriptive of how the article would likely appear; the FTC is not saying such a term is needed just because Winged Mercury Company paid Fitness Life to create and/or publish the article.

15. Re-distribution of 3d-party review(Business Guide Example 8) • An article published in Styling Home, the online lifestyle magazine referred to in Example 3, reviews family vehicles and ranks the NuvoTrek as the best hybrid. The car company that manufactures the NuvoTrek did not pay Styling Home to publish the original article, but wants to promote the article, given the favorable review of its car. The car company pays a content recommendation widget to integrate a link to the article into a popular car magazine’s site. The article itself is not advertising. However, the car company’s dissemination of the article through the content recommendation widget is a form of advertising, and thus the company has an obligation to ensure that any claims the article conveys about its car are truthful, not misleading, and substantiated. Also, to the extent that the article headline’s presentation on the site misleads consumers to believe that a link to the content is included or featured based on the independent judgment of the car magazine’s editors, and not based on payment by the sponsoring advertiser, a failure to effectively disclose its paid nature is likely deceptive. • Take-aways: The article itself is not commercial speech, but the advertiser’s re-dissemination of it is a form of advertising. The advertiser is responsible for product claims communicated by the article AND if the paid link to the article is presented in a way that misleads consumers to believe the car magazine endorses or recommends the article, the link should disclose that it’s paid-for.

16. Conclusion • To date, FTC decisions on commercial speech have not addressed “newsworthiness” per se • “Newsworthiness” might arise when considering established factors, e.g., economic motivation of speaker, intended audience

17. Thank You • mengle@ftc.gov • For more information: business.ftc.gov