2016 Starting Off with a Regulatory Bang

January 8, 2016

We are only eight days into 2016, but there are already early signals that U.S. regulatory agencies are planning for more action this year. The Federal Trade Commission (FTC), which is the main agency overseeing regulation of advertising practices, made a major announcement at the end of December regarding native advertising. The FTC released a policy statement and a guide for businesses that use native advertising that explain the agency’s plans for newly reinvigorated enforcement of the rules. While the report did not break major new ground by spotlighting the native advertising area, the FTC clearly signaled that increased enforcement activity in this area was imminent.

This week the FTC also debuted a new report, “Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues," which highlights many of the benefits this technology can provide to society, but also details how the uses of big data analytics could violate consumer protections. As Chairwoman Edith Ramirez stated upon the release of the report, the FTC is determined that “businesses must ensure that their big data use does not lead to harmful exclusion or discrimination.” Since many advertisers use big data to deliver advertisements to consumers, ANA members need to be highly mindful of the FTC’s guidance in this area.

There are two other regulatory areas which could have significant implications for advertisers in 2016. The first is the pending D.C. Circuit Court of Appeals decision regarding a lawsuit brought against the Federal Communications Commission (FCC) with the goal of overturning the FCC’s new net neutrality rules. The lawsuit specifically challenges the portion of the rule that classifies internet service providers as common carriers under Title II, a statute crafted for the decades-old telephone system. The decision in this case, which is expected to come as early as this spring, could dramatically affect the regulation – specifically in the privacy and data security areas – of internet providers and telecommunications companies.  

Second, the Centers for Disease Control and Prevention (CDC) released a report this week regarding the impact of e-cigarette advertising on youth. The report states that about 7 in 10 middle and high school students – more than 18 million young people – “receive” e-cigarette advertising in stores, online, in newspapers and magazines, or on television and in movies. The report goes on to claim that this advertising may be driving youth to use e-cigarettes and potentially increase tobacco use. It is clear that e-cigarette and tobacco advertising regulation is heating up for 2016. However, the CDC study, which focuses on teens seeing ads rather than ads being directed to them, is unlikely to sustain increased regulation of advertising in these areas.  

These are just a few of the actions regarding advertising regulation that have surfaced thus far.  We anticipate 2016 to be very active as the Obama Administration tries to use its final year to leave a lasting mark on the country’s regulatory landscape. In order to fully inform the advertising community about these developments, we will cover regulatory issues and many other topics at our upcoming ANA Advertising Law & Public Policy Conference, which will be held April 6-7 in Chicago, IL.

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