Breaking down the FTC's definition of 'native advertising' in games

August T. Horvath wonders if the FTC really groks native advertising, especially in gaming and entertainment contexts

A few months ago I experienced the phenomenon of Advertising Week, a kind of Comic-Con of online advertising that occurs each year around Times Square. My two main objectives were to meet some of the Angry Birds in person and to find out exactly what “native advertising” is. I had more success with the first goal. Even though many vendors actively promoted native advertising and used it in every other sentence, explaining what it was proved challenging.

Several other entities, especially advertising enforcers, seem disturbingly certain that they know what native advertising is. At a recent presentation, a Federal Trade Commission staffer announced, with tongue-in-cheek pride, the FTC’s first native advertising enforcement action: a 1915 case involving an advertisement posing as a magazine news article. It was a cute way to make the point that nothing in advertising law is really new, and to reinforce the FTC’s perennial position that any truth-in-advertising issue can be resolved by reference to the broad principles stated in the FTC Act. Somehow, though, it was unsatisfying. I came away wondering if the FTC really groks native advertising, especially in gaming and entertainment contexts.

Contributing Author

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August T. Horvath

August T. Horvath is a partner in the Kelley Drye's New York office. He focuses his practice on advertising law and antitrust matters. Mr. Horvath...

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