The Federal Election Commission last week approved a final rule establishing requirements for sponsorship disclaimers on political ads. The Commission’s internet disclaimer rule has been unchanged since 2006, at times leaving advertisers and platforms for political ads uncertain about how the rule applies to evolving technologies. The FEC’s review is ongoing, and the public is invited to comment on whether additional rules are necessary to regulate social media influencers, boosted ads, and other forms of digital advertising.

What’s New?

Technological Modernization. The rule approved this week incorporates proposed changes we first wrote about in 2018. To start with, the new rule makes clear that the current disclaimer requirements for ads placed for a fee on websites also apply to paid advertising through other digital platforms, such as social media, mobile apps, and streaming sites. This modernizes the rule to accommodate emerging technologies and is consistent with what has become common practice on major social media platforms and online advertising networks.

Formatting Standards for Digital Ad Disclaimers. The adopted rule also specifies new standards for how disclaimers must be formatted on internet-based advertising. Historically, disclaimers in online ads were simply required to be “clear and conspicuous,” leaving significant room for interpretation. The new rule articulates formatting requirements for digital ads, adapting the existing requirements for print, radio, and television communications to their internet-based counterparts. For example, the disclaimer on a paid online video ad—like those that appear on television—must be clearly readable without any action by the recipient of the ad, use a reasonable degree of color contrast between the background and disclaimer text, and be visible for at least four seconds. The Commission clarified, however, that the requirement for candidates to identify themselves and approve their messages (the so-called stand-by-your-ad requirement) applies only to television and radio ads.

Abbreviated Disclaimers for Small Ads. Disclaimers must generally include the name of the person who paid for the ad; the person’s telephone number, address, or URL; and a statement indicating whether the communication was authorized by any candidate or a candidate’s committee, where applicable. But recognizing that online advertising formats vary widely and may have size or character limitations, the new rule allows for an alternative “adapted disclaimer” when a full disclaimer cannot be provided or would occupy more than 25% of the advertisement. The “adapted disclaimer” requires only the identification of the person who paid for the communication by a commonly understood abbreviation or acronym, accompanied by a link or other mechanism that brings the viewer directly to the full disclaimer. This should provide welcome relief to advertisers using—and those platforms selling—small-format digital advertising. Notably, the Commission has chosen not to specify how to measure the 25% (i.e., pixels, seconds, characters, etc.), so that the rules can remain flexible as new technologies are developed.

Issues Still Under Consideration

The rulemaking did not mark the end of the FEC’s consideration of digital political advertising. The Commission is asking for public comment on whether disclaimers should be required in three specific situations:

1. When a social media influencer or other person is paid to create or generate content containing express advocacy or solicit contributions, which then appears on a third party’s website, mobile app, digital device, or advertising platform. This would appear to cover situations where there are production costs but there is no payment involved for the placement of the ad, such as ads placed free of charge on YouTube or on an influencer’s social media account;
2. When a payment is made directly to a website, digital device, mobile app, or advertising platform to “boost” content containing express advocacy or soliciting a contribution in order to increase the circulation or prominence of the content; and
3. When a person is paid to republish content containing express advocacy or soliciting a contribution on a third party’s website, digital device, mobile app, or advertising platform in order to increase the circulation or prominence of that content.

A final note: Many states and localities impose their own rules on political ads relating to non-federal elections and issues. These rules vary considerably from one jurisdiction to another, and many are broader than the FEC rule approved last week.

* The authors would like to thank Maxwell Weiss, an Associate in Venable’s Washington, DC office, for his assistance in writing this article.