Tracing FTC’s Line on Commercial Speech: What Makes an Ad an Ad and Why Does It Matter?
Katie Bond Sections 5 and 12 of the Federal Trade Commission Act (FTC Act) authorize the Federal Trade Commission (FTC) to take enforcement action against “false advertising” and “deceptive acts and practices” in the marketing and sales of most consumer products, including foods, cosmetics, over-the-counter drugs, and dietary supplements.1 Most of FTC’s cases in the area involve speech that is clearly advertising, and thus, clearly “commercial speech” within FTC’s jurisdiction. As examples, in the 1990s, when FTC investigated “Heart Smart” claims for margarine, there was no question that the magazine ads and television commercials that included the claims were advertising.2 Similarly, in 2000, when the agency took enforcement action against back pain claims for an over-the-counter pain reliever, the newspaper ads and television commercials carrying the claims were clearly advertising.3 Even when newer technologies are involved, what is an ad is, more often than not, not at issue. In 2014, for example, FTC investigated depictions in a pick-up truck commercial that was shot to look like video recorded with a smartphone.4 The commercial, which was run both online and on television, was clearly advertising. In the last several years, however, social media and other forms of what FTC calls “non-traditional media” have expanded opportunities for both advertising and protected, individual speech. With this evolution in how people communicate and how and when advertising reaches consumers, FTC has been relatively aggressive in identifying and taking action against speech that it perceives to be advertising masquerading as something else. This article posits that, in these actions and related guidance documents, FTC has not fully integrated established principles on commercial speech or clearly acknowledged the importance of distinguishing commercial from non-commercial speech in considering consumer-generated content. While FTC must continue its truth-in-advertising mission regardless of the channels being used, it is equally imperative that commercial speech is clearly and roperly defined, for the purposes of FTC jurisdiction, in order to avoid chilling or impairing protected speech.