Tag Archives: Advertising Law

What makes an influencer trustworthy?



Influencer marketing is now a major part of the advertising landscape, but questions around disclosures, sponsored content, material connections, and misleading claims continue to create challenges for brands, agencies, creators, and consumers.

In this episode of Ad Watchers, our hosts speak with Jennifer Santos about the Institute for Responsible Influence, an initiative designed to help creators and brands better understand responsible advertising practices. The conversation covers IRI’s certification program, FTC endorsement requirements, disclosure best practices, creator education, monitoring, accountability, and the growing global conversation around influencer self-regulation.

The episode highlights a key takeaway for advertisers and creators: responsible influence is not just about compliance. It is also about transparency, credibility, and building consumer trust in influencer marketing.

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Chapters:

00:00 – Welcome and episode introduction
Introduces Ad Watchers and frames the episode around influencer advertising, material connection disclosures, and NAD’s ongoing interest in influencer marketing.

01:57 – Introducing the Institute for Responsible Influence
Explains the Center for Industry Self-Regulation’s Institute for Responsible Influence and its goal of promoting transparency and consumer confidence in advertising.

03:08 – Why IRI was created
Covers how IRI grew out of concerns around misinformation, undisclosed sponsorships, misleading claims, and lack of awareness around advertising standards and FTC guidance.

04:14 – Responsible Influence Certification Program
Introduces the 90-minute certification program designed to educate creators on responsible advertising practices.

06:08 – How creators, brands, agencies, and consumers benefit
Explains how the program helps creators understand rules, helps brands identify responsible partners, and gives consumers more transparent and truthful content.

08:01 – Certification process and requirements
Breaks down the training modules, assessment, annual renewal, best practices pledge, and certification seal.

10:00 – Early response and global momentum
Discusses positive response from the creator ecosystem and how responsible influence certification is becoming part of a broader global conversation.

12:16 – Beauty, health, and wellness influencer marketing
Looks at industries that have been especially receptive to IRI, including beauty and health and wellness, where trust and influencer engagement are especially important.

14:58 – Monitoring and accountability for certified creators
Explains how IRI monitors certified creators’ public content and provides guidance when potential issues arise.

18:24 – Common education gaps for influencers and brands
Covers major areas where more education is needed, including material connections, disclosure requirements, intellectual property, and shared responsibility between brands and creators.

22:39 – Ongoing obligations for certified creators
Explains that certification is not a one-time exercise; creators must continue applying responsible influence principles in future content and brand partnerships.

23:50 – Building consumer awareness of the certification seal
Discusses the long-term goal of helping consumers recognize the certification seal as a signal of responsible advertising practices.

26:48 – The future of influencer self-regulation
Looks ahead to the creator council, certified creator database, vertical-specific trainings, and broader collaboration across the creator economy.

31:14 – Final takeaway: consumer trust and responsible influence
Recaps the importance of training, clear rules of the road, material connection disclosures, and building consumer trust through responsible influencer marketing.


The Ad Law Trend Report – What were 2024’s hot topics and trends?



The National Advertising Division (NAD) Annual Report provides a comprehensive look at the year’s ad law trends and hot topics, from influencers to AI to reviews and rankings. 

To kick off a new season of Ad Watchers, hosts Eric and Annie provide insights from the 2024 Annual Report and discuss what’s next in the year ahead, along with some timely best practices for advertisers. 

Annie and Eric discuss the report, highlighting key trends in advertising law, including the rise of influencer marketing, AI challenges, and comparative claims. They emphasize the importance of compliance in health and safety claims and preview upcoming events, including the 2025 NAD conference.

Key Takeaways:

  • NAD has over 50 years of experience in advertising law.
  • The annual report reveals significant trends in advertising disputes.
  • Fast-Track SWIFT filings have increased by 50% since 2023.
  • Influencer marketing cases are on the rise, especially in beauty.
  • AI-related advertising issues are becoming more prevalent.
  • Comparative claims continue to be a major focus for NAD.
  • Health claims require competent and reliable scientific evidence.
  • NAD is seeing new product categories and challenges.
  • The 2025 NAD conference will be held in September in Washington, D.C.

Chapters:

[00:00] Introduction to NAD and Advertising Law
[02:12] Annual Report Insights and Trends
[07:29] Influencer Marketing and AI Challenges
[12:11] Comparative Claims and Industry-Specific Cases
[17:03] Health and Safety Claims in Advertising
[19:29] Looking Ahead: NAD Conference and Future Trends


Clear and Conspicuous Disclosures: Can You Read the Fine Print?



For this episode of Ad Watchers, our hosts Eric Unis and Annie Ugurlayan, attorneys at the National Advertising Division (NAD), dive into the fine print to discuss disclosures – the what, when, where, and how of ensuring consumers receive the material information they need to make an informed purchasing decision. 

From small fonts to fast talking and distracting music, our hosts revisit this common issue area in advertising law. Listen in for a discussion of what it takes for a disclosure to be considered clear and conspicuous and uncover lessons learned from a series of print and TV advertisements that didn’t quite meet the standard for transparency. 

For more, listen to Season 1’s episode covering the 4 P’s of a proper disclosure: prominence, presentation, placement, and proximity.

Key Takeaways

  • (1:30) Proper execution of disclosures in advertising is crucial to ensure that consumers notice, read, and understand them.
  • (3:26) Disclosures should be clear and conspicuous, using plain English and being in close proximity to the claim or drawing attention to the disclosure. Hyperlinks should be used carefully, ensuring that important information is not hidden behind them and that they are easily noticeable and understandable.
  • (04:23) Consider the specific requirements of different advertising formats, such as TV, radio, and mobile devices, when designing and placing disclosures.
  • (22:06) Disclosures on packaging should be on the same panel as the claim and easily visible to consumers.
  • (24:30) Font size and readability of disclosures should be prioritized, avoiding the need for magnifying glasses.
  • (25:26) Use plain English in disclosures, keeping in mind that they should be easily understood by the average consumer.

The Best Subject In Advertising Law: Is It Puffery?



For this episode of Ad Watchers, join us for Eric’s favorite ad law topic: puffery, an exaggerated, blustering, or boastful statement or general claim that could only be understood to be an expression of opinion, not a statement of fact. But where is the line between puffery and a claim that needs a reasonable basis?

Our hosts once again revisit a fan favorite and discuss the most recent puffery cases seen before the National Advertising Division, breaking down the various facets of puffery, including the use of emojis, to answer the burning question – does it require substantiation?

Eric and Annie discuss the concept of puffery in advertising law, exploring its definition, application, and recent cases. The conversation delves into the nuances of puffery, its context-specific nature, and the challenges of distinguishing puffery from objective claims. It also addresses the use of symbols, emojis, humor, and pride in advertising, providing valuable tips for navigating puffery in advertising claims.

Key Takeaways:

  • (2:00) Puffery in advertising law is a nuanced and context-specific concept that requires a deep understanding of consumer expectations and the distinction between subjective and objective claims. Advertisers must assess how their target audience perceives various claims and differentiate between what is considered a mere opinion and a factual statement.
  • (8:21) The use of symbols, emojis, humor, and pride in advertising can impact the interpretation of puffery claims. It may lead to challenges in distinguishing puffery from objective claims since symbols and emojis can add ambiguity, humor can blur the lines between exaggeration and deception, and pride-based claims can appear subjective but sometimes imply objective standards.
  • (9:40) When navigating puffery in advertising claims, it is important to fully brief the issues, keep claims general, and tread carefully with humor to avoid denigrating messages. Ensure all team members are aware of the legal nuances, use generalized statements to reduce the likelihood of factual interpretations, and employ humor cautiously to prevent misinterpretation or offense.
  • (12:57) Understanding recent puffery cases and their outcomes provides valuable insights into the application of puffery in advertising law and the challenges faced by advertisers in defending their claims. Analyzing court decisions helps predict how similar claims might be judged, illustrates the evolving standards and expectations in advertising law, and aids in crafting defensible advertising strategies.

More episodes on puffery:

It’s Not Puffery. Do You Have The Evidence To Be #1?

Best Podcast Episode Ever: What is Puffery?


Episode Show Notes: Where is the Line Between Ethical Design and Dark Patterns?



0:00-1:26 This Ad Watchers episode provides insight into “Dark Patterns.” Coined by Harry Brignull in 2010, the term “dark patterns” is used to describe design practices that trick or manipulate users into making choices they would not otherwise have made, and that may cause harm. Eric Unis, Senior Attorney at the National Advertising Division (NAD), and his colleague Annie Ugurlayan, NAD’s Assistant Director, are joined by guest Deputy Director Katherine Armstrong. Katherine is a deputy director of the National Advertising Division (NAD) at BBB National Programs. She manages NAD attorneys and the overall case management and handling of monitoring and competitor-challenged truth-in-advertising cases, supporting long-term operations planning for the 50-year-old program.

Continue reading Episode Show Notes: Where is the Line Between Ethical Design and Dark Patterns?