Overview of Media and Advertising Law

Advertising has never moved faster or been more legally complex. From influencer marketing to brand partnerships, businesses must now navigate a shifting legal landscape shaped by the Federal Trade Commission (FTC), the Commercial Speech Doctrine, and evolving First Amendment rights.

Whether you’re launching a campaign, sponsoring content, or defending a reputation, key rules around claim substantiation, endorsements and testimonials, and deceptive or unfair advertising apply. Missteps can result in costly lawsuits for defamation, trademark infringement, or violations of someone’s right of publicity. Legal compliance is essential. Find a media and advertising lawyer who can help you protect your brand and avoid litigation.

What Is Media and Advertising Law?

Media and advertising law governs commercial speech, requiring it to be truthful, not misleading, pertain to legal activity, and substantiated by reliable evidence. It encompasses marketing, endorsements, and media content subjected to First Amendment protections under the Commercial Speech Doctrine, which allows regulation of deceptive or misleading ads, based on the U.S. Supreme Court’s ruling in the 1980 case Central Hudson Gas & Electric Corp. v. Public Service Commission.

Consumer protection law includes laws that govern how private businesses advertise to consumers. The goal is to protect the public from fraudulent or predatory behavior that goes beyond puffery. Marketing claims must be based on verifiable truth.

The FTC’s Role in Regulating Advertising

The FTC has regulatory authority over advertising under Section 5 of the Federal Trade Commission Act. It can prohibit unfair or deceptive ads. This includes misleading claims, omissions, and unfair business tactics.

The FTC focuses its enforcement on areas where false advertising is common. Targeted enforcement areas include:

• Advertising directed at small businesses
• App ratings
• Subscription traps that are hard to cancel
• Exaggerated health or environmental benefits

The FTC typically begins enforcement with an investigation. Enforcement can include consent decrees, cease-and-desist orders, and corrective advertising orders. For repeated or egregious violations, the FTC can order fines of up to $46,517 or more per violation.

The FTC works with several federal government agencies that regulate specific industries. The U.S. Food and Drug Administration (FDA) regulates drug and health claims. The Federal Communications Commission (FCC) regulates broadcast and telemarketing rules. The Securities and Exchange Commission (SEC), the Consumer Financial Protection Bureau (CFPB), and the Financial Industry Regulatory Authority (FINRA) regulate financial services and investment-related marketing. Additionally, state attorneys general can enforce their own state laws.

What Makes an Ad Deceptive or Unfair?

Deceptive advertising includes false claims or a failure to disclose essential information that is likely to mislead a “reasonable” consumer in their behaviors or purchasing decisions. Under FTC policy, an act is “unfair” if it:

• Causes or is likely to cause substantial consumer injury, which can include financial “injury”
• Is not reasonably avoidable by consumers
• Is not outweighed by countervailing benefits

The FTC requires what is known as “reasonable basis substantiation” — in short, proof — for advertising claims, especially in ads regarding health, safety, efficacy, or cost savings. Advertisers are responsible for all reasonable interpretations of their advertising message, even if only implied by any imagery or context.

National Advertising Division

In an effort to increase consumer trust and encourage fair competition, the advertising industry founded the National Advertising Division (NAD). The purpose was to create a self-regulatory process that maintains high standards of accuracy and truth-in-advertising for consumers.

Consequences of False or Misleading Advertising

The consequences and legal issues can be heavy for companies caught ignoring advertising laws. This makes it crucial to promptly respond to warning letters and other requests. In addition to federal penalties, state-level enforcement can include fines, injunctions, and restitution orders. Multistate coalitions sometimes collaborate on large deceptive advertising investigations.

Competitors can also sue for false or misleading advertising that causes commercial harm. Remedies may include injunctive relief, monetary damages, and attorneys’ fees.

False or misleading statements about someone else could lead to a defamation lawsuit. Advertising that includes the unauthorized use of a person’s name, likeness, or identity in advertising can result in right of publicity lawsuits. False or misleading ads that infringe on trademarks or copyrighted content may expose advertisers to additional liability.

In large-scale violations, a company or individual could face class-action lawsuits. These can result in expensive settlements or verdicts. Negative publicity and damage to brand reputation can also result from the exposure of false or deceptive marketing.

In extreme cases, a company or individual could face criminal prosecution. This happens when the false advertising crosses the line into criminal fraud territory. These cases commonly include wire fraud, mail fraud, scams, or conspiracy. The Department of Justice can prosecute advertisers for intentional schemes to defraud consumers.

Rules for Endorsements, Testimonials, and Influencers

With the rise of digital advertising, federal and state laws have evolved to address this new marketing area. Restrictions and guidelines that apply to traditional endorsements and testimonials now also apply to social media influencers.

The term “endorsement” includes verbal, visual, social media tags, images, or any content consumers likely perceive as representing someone else’s experience. If a testimonial highlights results from one or a few users, the ad implies those outcomes are “typical.” If they are not, a clear disclaimer stating typical results must appear. Experts (e.g., professionals, celebrities, influencers qualified by experience or study) must possess the expertise and have personally tested the product.

Influencer or testimonial endorsements must clearly disclose what are known as “material connections” (payment, free products, affiliate links) in compliance with FTC endorsement guidelines. Non‑disclosure can trigger civil penalties of up to $43,800 per violation. Endorsements should be visible at first glance, include language like “ad,” “sponsored,” or “paid partnership,” and appear without requiring additional clicks.

Influencers, ad agencies, brands, and PR firms can be held liable for making false, misleading, or unsubstantiated endorsements.

First Amendment Protections for Commercial Speech and Lawful Speech Restrictions

The First Amendment’s free speech protections are not all-encompassing. Commercial speech is protected under the First Amendment, but enjoys less protection than political or artistic speech. Speech loses constitutional protection — meaning courts will not protect — commercial speech if it is false, misleading, or promotes illegal activity, even if presented as marketing.

Courts use a four-part test to determine any speech regulation’s constitutional validity:

• Speech must concern lawful conduct and must not be deceptive
• The regulation must pursue a significant societal goal
• The regulation must materially advance the asserted interest and not be based on hypothetical or weak connections
• Any restriction on speech must reasonably fit the government’s objective

The government can regulate the time, place, and manner of advertising, such as location, format, or audience. The restrictions must be “content-neutral” and not unfairly suppress legal, truthful speech.

Advertising in Regulated Industries

Some industries are heavily restricted when advertising. These are typically industries that present a risk to the general public. The government maintains a stronger interest in limiting advertising as it protects public health and safety. Marketing and advertising are heavily regulated for

• Alcohol
• Tobacco
• Gambling
• Financial services
• Prescription and over-the-counter medications
• Medical devices

Alcohol Advertising

The Alcohol and Tobacco Tax and Trade Bureau (TTB) enforces advertising for all beer, wine, hard liquor, and other malt beverages. Advertising for alcoholic beverages must:

• Display the advertiser’s name, city/state, and contact details
• Avoid deceptive or indecent representations (e.g., purity claims unless accurate)
• Exclude obscene or indecent language or imagery

Pre-approval is not mandatory, but TTB offers a voluntary review to prevent post-publication compliance issues. Social media ads are evaluated case-by-case, and some state laws require age verification portals.

Tobacco Advertising

Tobacco advertising must comply with the Family Smoking Prevention and Tobacco Control Act. The FDA regulates tobacco product marketing. The guidelines prevent advertising on TV, radio, and digital media. Tobacco ads must feature prominent, graphic health warnings that cover at least 20% of ad space in print advertising or on product packaging. Marketing to minors is severely restricted, including bans on free samples and sponsorships targeted at youth audiences.

Gambling Advertising

Gambling faces heavy advertising regulation due to its addictive nature. Advertising must comply with state-specific gambling regulations, especially with respect to age restrictions and geographic targeting. Ads must not target minors or mislead consumers about odds or legality. Oversight is often shared by state gaming commissions and supplemented by FTC guidelines against deceptive practices in online gaming ads.

Health Care Advertising

The health care industry must follow strict regulations. The FDA Office of Prescription Drug Promotion (OPDP) reviews the advertising of prescription drugs and medical devices. Ads must present a fair balance of risks and benefits and must be truthful and substantiated. Major risk statements are displayed in plain, consumer-friendly language both in audio and on-screen text. Health claims must be supported with clinical evidence approved by the FDA. Regulation is far-reaching, including supplements.

Advertising to Kids

Companies must be careful in the type of information they use to target consumers. Children are considered more vulnerable, and thus, advertising is more heavily regulated. The Children’s Online Privacy Protection Act (COPPA) prevents companies from using personal data and behavioral advertising when creating marketing materials and advertising meant for minors.

Why You May Need a Media and Advertising Lawyer

The FTC’s enforcement efforts and regulations for sensitive industries create a demanding legal environment. Missteps can result in civil and criminal penalties. Protecting your business from these risks requires expert legal guidance to navigate federal rules, industry-specific mandates, and intellectual property concerns.

Legal advice is essential when responding to cease and desist demands alleging false advertising, trademark infringement, or defamation. Lawyers assist in evaluating risks and negotiating resolutions to avoid costly litigation or public relations damage.

Media lawyers also assist businesses in reviewing advertising content to ensure compliance with federal and state laws before public release. Attorneys help draft contracts addressing rights of publicity and intellectual property use to protect against future litigation. If litigation occurs, a media lawyer can serve as defense counsel during FTC investigations or enforcement actions involving deceptive or unfair advertising claims.

Hiring a qualified media and advertising attorney empowers you to stay compliant, manage legal risks, and defend your rights in an increasingly regulated marketplace.