It was the question on everyone’s mind, at least judging by the laughter that followed the question: “Would you say that the current FTC is anti-advertising?”
At the IAB’s annual Public Policy and Legal Summit in Washington, DC, this week, that question could finally be answered, as two representatives from the agency, Michelle Rosenthal, a senior attorney within the FTC’s advertising division, as well as Commissioner Rebecca Kelly Slaughter, spoke at the event.
“My answer is a very definite no,” Rosenthal said in response to the question, which was asked by the IAB’s director of public policy, Virginia Poe. “There need to be some reasonable limitations that ensure that companies aren’t breaking the law. In the end, my personal opinion [is that] holding companies accountable for this actually helps the legitimate companies.”
Meanwhile, Slaughter joked to the audience that she’s not as “scary or crazy as you may assume.”
Later, when discussing the term “surveillance advertising,” one she’s used in the past, Slaughter noted that “what I’ve heard from people here and from other folks is that the very term ‘surveillance’ is normative, pejorative, and problematic.” But, “getting into questions of tones is really not for me. The most important focus is, ‘What is the substance?’”
And maybe the same can be said for the agency she works for.
“The FTC can’t take action based on vibes. They have to take action based on a substantive record that’s in front of us about real practices and their real consequences,” she said.
Their appearances are notable considering representatives from the agency didn’t attend the conference in 2022, 2021, or 2020, at least according to the conference’s previous agendas. As the audience laughter probably suggested, digital advertisers have had a complicated relationship with the FTC, which has highlighted several advertising practices over the last few years, including the use of “dark patterns” that disguise ads and data collection, ubiquitous tools like tracking pixels, and the collection and selling of personal data.
Rack ’em up
Under Chair Lina Khan, who was sworn in nearly two years ago, the agency has scrutinized the mechanisms that make up the digital advertising industry.
- Last year, it announced that it would be “exploring rules to crack down on harmful commercial surveillance and lax data security.”
- In August, the agency sued the data broker Kochava for allegedly sharing data “that can be used to trace the movements of individuals to and from sensitive locations,” such as reproductive-health clinics, effectively questioning the practice of collecting and selling sensitive location data.
- In March, mental health platform BetterHelp agreed to pay $7.8 million for allegedly sharing its customers’ sensitive health data for advertising purposes. The FTC proposed banning the company from “sharing consumers’ health data…for advertising.” BetterHelp used tracking pixels to collect data, according to the FTC, a tool commonly used in the industry.
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In February, IAB CEO David Cohen told us the agency was “overreaching and probably trying to fill the void” created by the lack of federal privacy legislation. At this week’s event, he told Marketing Brew that “the language coming out of the FTC…would give someone an indication that there is an agenda against advertising.”
“We don’t have an anti-FTC perspective, even if some in the FTC may have an anti-advertising perspective,” Lartease Tiffith, EVP of public policy at the IAB, added.
The FTC’s efforts have coincided with a rush of potential privacy bills, including bills that aim to further protect children and federal privacy legislation. Should there ever be legislation on these topics, the FTC would reassess, Rosenthal said. “What we’re doing is not lost time,” she said.
For those who want to read the FTC’s tea leaves, Slaughter suggested reading its most recent cases and proposals to help illuminate “where the FTC is going at this moment.”
“I’ve heard a lot of skepticism from industry about FTC rulemaking, and rulemaking being a power grab, but I actually feel really strongly that clearly articulated goals are a much better and fairer way to communicate to businesses what the law requires of them,” she said.