Some may be shocked that an advertising law blog is writing about the Bare Beauty Babes blog and Naked & Thriving, but it is not the implied nudity that should raise an eyebrow. Instead, it is the fairly scandalous takeaway that advertisers may need to rethink their testimonial and native advertising disclosures in order to be all buttoned up and avoid a dressing down from the FTC or NAD. While for many years we have thought of #ad or #sponsored as the gold standard for a disclosure to identify commercial content, a recent NAD case reminds us not to be on autopilot and instead to think through when a bespoke disclosure that includes information about the sponsoring advertiser might be needed.
In a recent monitoring case, the NAD looked at the Bare Beauty Babes blog, which has product review articles written by dermatologists and other expert endorsers. The blog is owned by Naked & Thriving, a cosmetic and skin care brand. One specific blog post reviewed hyaluronic acid serum and ranked Naked & Thriving’s brand as No. 1. The NAD noted the blog had a small disclosure: “The content on this site is sponsored and the Bare Beauty Babes may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships.”
The paid writer of the blog posted the article to her social media pages, identifying the post as “Sponsored” near her byline. The NAD said this was not enough; just having the advertising disclosure did not tell consumers all they needed to know – they needed to be told who was sponsoring the post, i.e., “Sponsored by Naked & Thriving.”
The FTC has often encouraged advertisers to use what they call unambiguous language to disclose any material connection, and they have often used “Ad,” “Advertising” and “Sponsored” as choice alternatives. Over time, the FTC decided disclosures like “partner” and “ambassador” could be used, but it always recommended that such a disclosure include the brand name, e.g., #BrandPartner or #Brand_Ambassador. But ad or sponsor disclosures were often used standing alone. In most cases, it should be obvious who is the advertiser in a post, such as cases where an influencer or a blog discusses only one product. But in cases where multiple products are discussed and the creator has a material connection to only one, the name of the advertiser should be included. Other times, the name of the sponsoring brand should be included as part of the disclosure when the content is not brand specific but discusses or promotes a product category or an issue (such as knowing whether a blog about the health benefits of a low-carb diet was sponsored by a keto cookie company).
When you think about it, this makes great sense. The point of a material connection disclosure is to let a viewer know when the content they are viewing was motivated by a commercial relationship. This helps them put the content into context and decide how much weight or credibility to assign to the recommendations. But for many who have gotten into the habit of starting a post with #ad and thinking this was the A+ disclosure, the NAD and FTC are recommending we pause and consider whether the disclosure needs to also include the identity of the sponsor. Thinking this through at the beginning of a campaign is key so that appropriate instructions can be given to the agency running the campaign and to the influencers themselves, hopefully to get posts compliant right up front so everyone is thriving (nudity optional!).
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