We have written a lot about the emerging legal issues with “native advertising” and eagerly track case development at the NAD (Qualcomm, eSalon and Shape) as well as the FTC. And so much more is covered in the marketing press about what native advertising is and how can it be scaled. Marketers agree the ideal of native advertising is to create content so compelling that consumers flock to engage, and in the process connect with the brand behind the content. Many are deeply suspicious. Publishers for one, who take passionate and almost violent pride in protecting the line between editorial and advertising content. And many question whether advertisers can be really engaging. As lawyers to the marketers, we find good marketing to be wildly entertaining and have faith this can be accomplished. And we did not have to look far to find this brilliant example. While we seek out every opportunity to bring you witty videos (and sometimes work hard to craft a legal musing around them, this may be our best link ever. Please take a moment to enjoy and we will be back with you shortly:
How awesome was that? We were engaged to the point of needing to shut our door we were laughing so hard. And the situation they posit is one we professional desk jockeys encounter every day, and is SNL-worthy. And so how brilliant is it that the entire video was a lead-in to an ad for an executive leadership conference. One we are confident is as witty and insightful as the video lead-in.
With all of the focus in native advertising on the duty of the marketer to disclose and the testimony of consumer groups at the FTC’s workshop that people had a fundamental right to know when they were viewing advertising, was there an obligation to start the video with a statement that “this is advertising – you will be presented with information for a leadership conference at the end of this amusing vignette”? We hope not. While in this instance an upfront disclosure is certainly the right of the leadership conference sponsors, because the video had nothing to do with the upcoming conference, or the benefits of executive training generally, or disparaging of competing training companies, to our mind there is no material omission under Section 5 demanding such candor at the outset. And we think it would be a shame if enforcers and self-regulators tipped the balance in this direction as it may well chill the creation of such truly engaging content.