FEC Adopts New Rules for Digital Ad Disclaimers, Seeks Comment on Potential Additional Disclaimer RulesThursday, December 1, 2022
This morning, December 1, 2022, the Federal Election Commission (“FEC”) adopted a new rule for disclaimers for digital political ads. At the same time, the agency is seeking public comment on whether disclaimers should be required for additional types of digital political content. The two measures clarify the requirements for digital political content in some respects, while leaving the requirements unclear in other respects.
Today’s FEC action is notable in how long the agency has struggled with this issue. In 2006, the FEC enacted what is known as the “internet exemption.” The exemption generally left political content regarding federal-office races unregulated (the FEC generally has no jurisdiction over state- and local-office races). However, “communications placed for a fee on another person’s Web site” regarding federal candidates were still regulated.
In 2011, the FEC initiated a rulemaking on how its disclaimers should apply to online ads. Many online ad formats are quite small or short and present challenges for fitting in the standard FEC disclaimers. The disclaimers also can get quite lengthy depending on what type of entity is sponsoring the ad or what the ad says.
The FEC rulemaking proceeded in fits and starts over the following years. All the while, digital political ads have become even more ubiquitous.
After more than a decade of rulemaking proceedings, the FEC has adopted a rule that expands the application of the disclaimer requirement for digital ads to include any “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” (emphasis added)
Digital ads that have any “text or graphic components” must include the FEC disclaimer in writing. For example, if a Pandora or Spotify ad is accompanied by a graphic display in the audio app, it appears that the disclaimer must be displayed in writing within the graphic display. On the other hand, an audio-only digital ad must include a spoken disclaimer.
Digital ads with a video component must display a written disclaimer for at least 4 seconds.
If the full required disclaimer cannot be provided or if the full required disclaimer would occupy more than 25 percent of the digital ad “due to character or space constraints intrinsic to the advertising product or medium,” then an “adapted disclaimer” may be used. The final rule prescribes what the “adapted disclaimer” must look like.
ADDITIONAL QUESTIONS AND PUBLIC COMMENT OPPORTUNITY
The final rule that the FEC adopted this morning punts on the question of what to do with online content that is “promoted for a fee.” An earlier draft of the final rule had attempted to address that issue, but commentary finding fault with the draft approach resulted in the language being pulled from the final rule.
Instead, the FEC voted to seek additional public comment on how the agency should regulate “promoted” content advocating for or against federal candidates or raising money for federal political committees. This issue could include not only “promoted” social posts (i.e., where a sponsor pays a social media platform to push a social media post to users’ feeds), but also instances in which: (i) a third party pays to “promote” or “boost” the original sponsor’s or author’s post; and (ii) social media “influencers” are paid to advocate or raise money for a federal candidate or political committee within the influencer’s own content.
Separate from the issue of “promoted” content, there are also inherent ambiguities in the rule text that the FEC adopted this morning. For example, the terms “digital device,” “application,” and “advertising platform” are not defined. Questions will certainly arise over whether certain forms of digital content fall within these regulated categories. These questions will have to be addressed in the FEC’s advisory opinion process.
The final rule and the FEC’s explanation for it also do not unequivocally address whether the agency’s preexisting disclaimer exemptions for “small items” and “impracticability” still apply to digital political ads.
If you have any questions about how the FEC’s new disclaimer rules will apply to your digital political ads going forward, or if you would like to submit comments to the FEC on how the disclaimer rules should or shouldn’t apply to “promoted” digital content, please contact Chris Gober ([email protected]) and Eric Wang ([email protected]).
Also note that many states have adopted similar disclaimer rules for digital content regarding state- and local-office candidates. We advise clients on such state requirements in all 50 states.
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