Eleanor Finch
Political advertising is a highly contentious issue, with questions arising over the extent to which it should be regulated. In the US, the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) administer rules for advertising and political programming respectively. However, the FTC's Truth in Advertising standard does not apply to political campaigns or politicians, who are largely exempt from advertising requirements on the grounds of free speech. In the UK, the Advertising Standards Authority (ASA) regulates general advertising, but non-broadcast political advertising is exempt. The rise of social media and digital platforms has further complicated the issue, with some digital companies voluntarily introducing measures to improve transparency for voters. While the Honest Ad Act seeks to include digital platforms in the Federal Election Campaign Act of 1971, the lack of federal legislation to address disinformation in political advertising remains a concern.
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What You'll Learn
The role of the Federal Trade Commission (FTC)
In the United States, the Federal Trade Commission (FTC) is the primary federal consumer protection agency. The FTC is an independent agency of the US federal government, established by the Federal Trade Commission Act (1914), that regulates advertising, marketing, and consumer credit practices. The FTC has five commissioners who serve seven-year terms and are nominated by the US president and confirmed by the Senate.
The FTC's role in advertising is to regulate deceptive advertising and prevent unfair or deceptive trade practices. This includes regulating product claims made in advertisements in newspapers, magazines, direct mail, internet media, television, and radio. The FTC ensures that advertisers do not disseminate false, unsubstantiated, or deceptive advertising claims. When unlawful claims are identified, the FTC may impose orders, requiring advertisers to halt their false or deceptive advertising. The FTC also enforces the INFORM Consumers Act, which requires online marketplaces to verify the identity of high-volume third-party sellers.
The FTC's Telemarketing Sales Rule helps protect consumers from fraudulent telemarketing calls and gives them certain protections under the National Do Not Call Registry. The FTC also has guides concerning the use of endorsements and testimonials in advertising, which were revised in 2023. These guides provide plain language guidance related to reviews, social media influencers, and compliance with the Consumer Review Fairness Act.
However, it is important to note that the FTC does not have responsibility for political advertising messages, which are regulated by the Federal Election Commission and the Federal Communications Commission. The FTC can only regulate practices in commerce and does not have jurisdiction over activities protected by the First Amendment, which includes freedom of speech in political advertisements.
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The First Amendment and free speech
In the United States, the First Amendment protects free speech and, by extension, advertising or "commercial speech". However, commercial speech enjoys less protection from government intervention than other forms of speech, such as political speech. This is because commercial speech is more objective and can be regulated if it is found to be false or misleading.
The Federal Trade Commission (FTC) is tasked with regulating commercial advertising and protecting consumers from false advertising by companies through its "Truth in Advertising" standard. However, the FTC does not have jurisdiction over activities protected by the First Amendment, including political campaigns and politicians, who are largely exempt from advertising requirements on the grounds of free speech.
The Federal Communications Commission (FCC) administers rules for political programming, including sponsorship disclosures, and requires television and radio ads to include disclosures about who produced them. Broadcast networks are required to sell ad time to all candidates for federal office and are restricted from altering the content of those ads, regardless of how offensive or untrue they may be.
While there are some regulations in place for political advertising, there are concerns about the lack of fact-checking and the spread of disinformation. Some states have taken steps to address this, with 27 states as of 2014 prohibiting false statements in advertisements. However, courts have struck down laws in four of those states, citing concerns about the chilling effect on free speech.
The Honest Ad Act has been introduced to include digital platforms in the Federal Election Campaign Act of 1971 and address the lack of regulation around targeted advertising on digital media. While some digital platforms, like Facebook, have introduced measures to improve transparency, others, like Twitter, have chosen to ban political advertising altogether.
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Fact-checking and false statements
In the United States, the Federal Trade Commission (FTC) is tasked with regulating commercial advertising. The FTC protects consumers from false advertising by companies through its "Truth in Advertising" standard. However, political campaigns and politicians are largely exempt from these advertising requirements, as they are protected by the First Amendment and free speech.
In the UK, the Advertising Standards Authority (ASA) enforces the Advertising Codes, with separate codes for non-broadcast (CAP Code) and broadcast advertisements (BCAP Code). While the ASA regulates general advertising, sales promotions, and direct marketing across all media, non-broadcast political advertising that aims to influence voters in elections or referendums is exempt under rule 7 of the CAP Code.
Despite the lack of regulation, there are still some deterrents to false statements in political advertising. Cable networks have developed norms around fact-checking political advertisements, and candidates can be sued for defamation by the makers of an ad. Additionally, some digital and social media companies have voluntarily introduced measures to improve transparency for voters. For example, Facebook's Ad Library offers a searchable collection of all ads currently running across its products.
To address the issue of false statements in political advertising, some have called for legislation that specifically requires fact-checking in political advertising on both traditional media and digital platforms. The Honest Ad Act, introduced by US senators, aims to include digital platforms in the Federal Election Campaign Act of 1971 and address the lack of regulation on digital media.
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The Electoral Commission and party funding
In the UK, the Electoral Commission is an independent body that regulates party and election funding. While the Advertising Standards Authority (ASA) regulates general advertising, sales promotions, and direct marketing across all media, non-broadcast political advertising that aims to influence voters is exempt from ASA regulation. This exemption was recommended by the 1998 "Neill Committee on Standards in Public Life" report, which suggested that political advertising should adopt a new code of practice.
Following this report, the Electoral Commission consulted on the issue in 2003 and published its "Political advertising – report and recommendations" in 2004. The Commission emphasised the need to protect the interests of the electorate but argued that any regulation of political advertising should be voluntary. While electoral law does not require claims in political campaigns to be factually accurate, it is a crime to make or publish false statements about a candidate's personal character or conduct.
The Electoral Commission provides public funding to eligible political parties, candidates, and Senate groups. In the UK, this includes grants to help develop policies for election manifestos, which are available to parties with at least two sitting members of the House of Commons who have taken the oath of allegiance. The first £1 million of the grant is distributed equally, with the remaining amount calculated based on the proportion of the registered electorate and the share of votes received in each part of the UK.
In Australia, the Australian Electoral Commission (AEC) distributes funding to eligible entities after federal elections or by-elections. To be eligible, candidates or groups must receive at least 4% of the total first preference votes. The AEC makes automatic payments to eligible entities and also accepts claims for additional funding based on electoral expenditure. Similarly, the Victorian Electoral Commission (VEC) in Australia provides public funding to eligible political parties and independent candidates based on the number of candidates elected or the percentage of first preference votes received.
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Regulation of social media advertising
Social media advertising has grown significantly in recent years, with billions of users spending a lot of time on these platforms. This has led to concerns about its impact on key issues such as online privacy and mental health, especially for children and teens. As a result, there has been a burst of regulatory action to address these concerns and protect younger audiences.
In the United States, the Federal Trade Commission (FTC) plays a crucial role in regulating social media advertising. The FTC's "Truth in Advertising" laws extend to all types of advertising, including social media and digital platforms. The FTC can take action against companies if it deems an ad to be false or misleading, including fines, legal proceedings, and removing the ad from publication. The FTC also enforces regulations on native advertising and promotional devices, ensuring that consumers are informed of the material terms and applicable limitations.
Additionally, social media platforms themselves have implemented measures to improve transparency. For example, Facebook introduced its Ad Library, which allows users to search for all ads currently running on its products. Twitter has also announced a ban on political advertising globally. These voluntary actions by social media companies demonstrate their commitment to addressing the concerns surrounding social media advertising.
While the FTC regulates commercial advertising, political advertising has largely been exempt from similar requirements due to free speech considerations. However, there have been efforts to address disinformation in political advertising. The Honest Ad Act, introduced by US senators, aims to include digital platforms in the Federal Election Campaign Act of 1971, recognising the need to adapt to technological advancements. The act argues for extending the norms of traditional media, including fact-checking, to digital platforms to deter the dissemination of false and inflammatory messages.
In the United Kingdom, the Advertising Standards Authority (ASA) regulates general advertising, sales promotions, and direct marketing across all media. The ASA enforces the Advertising Codes, including the CAP Code for non-broadcast advertisements and the BCAP Code for broadcast advertisements. However, political advertising that aims to influence voters in elections or referendums is exempt from ASA regulation under the CAP Code. This exemption was introduced following the 1997 General Election to preserve the ASA's impartiality and avoid potential conflicts.
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Frequently asked questions
Non-broadcast political advertising that aims to influence voters in local, regional, national or international elections or referendums is exempt from regulation by the Advertising Standards Authority (ASA). The ASA regulates general advertising, sales promotions and direct marketing across all media, and all adverts must be “legal, decent, honest and truthful”.
The Federal Communications Commission (FCC) administers rules for political programming, and the Federal Trade Commission (FTC) regulates commercial advertising. However, political campaigns and politicians are largely exempt from advertising requirements on the grounds of free speech.
The Honest Ads Act is a piece of legislation that seeks to include digital platforms in the Federal Election Campaign Act of 1971. It would require digital platforms to maintain public files of ad buys that discuss elections or legislative issues, including the content of the ad, the audience targeted, the timing, and payment information.
