Tracing FTC’s Line on Commercial Speech: What Makes an Ad an Ad and Why Does It Matter?
Food and Drug Law Journal - Volume 71 Number 2
2016

Senior associate Katie Bond’s manuscript “Tracing FTC’s Line on Commercial Speech: What Makes an Ad an Ad and Why Does It Matter?”, originally presented at the 2nd Annual Food and Drug Law Journal Symposium, was featured in the Food and Drug Law Journal Volume 71 Number 2. The article notes that 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. Katie suggests 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. She notes that, 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 properly defined, for the purposes of FTC jurisdiction, in order to avoid chilling or impairing protected speech.