Federal Election Commission

The Federal Election Commission has approved new disclaimer requirements for online ads, including audio spots that stream on the web. The end result will mean disclosures for online audio ads will not be the same as what is on the radio, but the guidelines governing the two will now be a step closer.

As part of its years-long review, the FEC considered adopting stand-by-your-ad content requirements, similar to what broadcast radio and television ads feature with information about who is responsible for the ad’s content. The idea was based on the premise that the formats are indistinguishable from one another, despite having a different delivery method, and the proposed regulations would ensure that internet audio ads could air on radio. But in the end, the FEC decided that a hybrid approach that will treat the two differently is a better course, in part because it does not have the legal authority to require stand-by-your ad disclosures in online ads.

Under the new rules, the digital ad disclosures will still need to be obvious, but the exact wording is not being spelled out. Commenters in the proceeding had suggested a more flexible approach would better suit digital advertising and would allow it to adapt to potential future technologies. The FEC agrees.

“The Commission agrees with the commenters who generally support the establishment of a disclaimer rule specific to internet public communications,” the FEC writes in its decision. But it also makes it clear that the regulations for online audio and video ads are not the same as on radio and TV.

“The new internet disclaimer provisions do not impose the stand-by-your-ad requirements applicable to radio and television advertisements on internet public communications,” the decision says. “This provides flexibility to speakers in determining the type of indicator that best serves their needs and their communication so long as it also satisfies the requirements of the regulation.” The FEC says the disclosures will simply need to meet a “clear and conspicuous” requirement.

The new rules also say that – despite the fact that digital audio players can have companion visual elements or a web audio ad can be paired with a social media post – the disclaimer must be spoken in the content of the audio ad “so that a recipient need not take any additional action beyond listening to the advertisement to obtain the disclaimer information.” And while it says that video streaming ads must have the disclaimer on screen for at least four seconds, the FEC did not mandate any specific length for the streaming audio ads.

“The Commission acknowledges that not all recipients of internet public communications will necessarily see or hear required disclaimers, but does not consider this a sufficient reason to not require their inclusion,” the FEC decision says.

The FEC approved the changes after the final regulations were scaled back from what had been proposed earlier. The package of changes also includes new requirements for how visual ads on a website must look in what is the first update to online disclosure rules since 2006.

“This revised regulation will not unduly burden freedom of speech,” Republican Commissioner Sean Cooksey said during their December meeting, saying the “light touch” approach aligns with his advocacy for “robust” internet exemptions to ad disclaimer rules.

The revisions achieve some of what efforts in Congress have tried to do. Senator Amy Klobuchar (D-MN), Chair of the Senate Committee on Rules and Administration with oversight over campaign finance law, calls the FEC rule changes a “step in the right direction” to creating disclaimers for online political ads, just like for radio and television.

“We must do more to improve the transparency and accountability of these ads,” Klobuchar said. She earlier introduced the Honest Ads Act (S. 5054) with Senators Lindsey Graham (R-SC) and Mark Warner (D-VA) that would require online political advertisements to adhere to the same disclosure requirements as radio, TV, and print ads.

The FEC is signaling it intends to do more to improve political ad disclosures. While it finalized rules for audio, video and display ads, the Commission also asked for additional public comment on how to address disclosures among social media influencers. It is also looking at whether disclosures are needed when a person or website, mobile app or ad platform are paid to “boost” content, such as making it more prominent on the app or social sharing content that promotes a candidate.