Ethics Thought Leadership

PR & Advertising: The Lines Continue To Blur

Editor’s note: As we celebrate Ethics Month this September, PRSA invited members of the Board of Ethics & Professional Standards (BEPS) to provide their views and thoughts on the pressing ethical issues affecting the PR industry. Track the series and join the discussion by using the hashtag #PREthics. For a full list of Ethics Month activities visit the 2014 Ethics Month section of the PRSA site.

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via: Trey Ratcliff

You do it and so do I.

A friend or acquaintance – someone who is casually acquainted with what you do but is far from an industry insider – describes the business you’re in as “advertising.”

Whoa there, Tex! You explain, gently and politely of course, that you are in public relations and that is a whole lot different from advertising. (You’ve probably got bullet points memorized in case you need them to explain the difference.)

Depending on your perspective and your personality, you might find this a major annoyance or just part of life. But aside from having to explain it more than you would probably prefer, it’s not that big a deal.

That might be changing, though, and in a way that could require the industry to take the conflation between advertising and PR a lot more seriously. That’s because the Federal Trade Commission has gotten involved.

In its regulation of commercial speech, the FTC regards content coming from PR firms as indistinguishable from that put out by ad agencies. I talk a lot about ethics as an industry imperative, but this makes it a legal one as well. If we’re not careful about the things we say on our clients’ behalf, we can get both the clients and ourselves in hot water.

My friend Michael Lasky is a senior partner at the law firm of Davis & Gilbert LLP, where he heads the PR practice group and co-chairs the litigation department. I asked him to sum up some of the compliance issues PR firms need to be aware of given the current regulatory environment. Here is some of what he told me (and some of this was previously published in PR Week):

  • PR firms should have a reasonable basis to support all claims made in the content they disseminate for their clients, prior to disseminating that content.  Otherwise, they could be committing an unfair and deceptive practice in violation of Section 5 of the FTC Act.
  • All content should contain clear and conspicuous disclosures to ensure the content is not false, deceptive or misleading.  Disclosures need to be drafted carefully so that they are easily understood.
  • Content should also be designed not to mislead the audience for whom the message is targeted.  The PR firm should have an ability to establish, upon inquiry, who was the intended audience.  For example, was the intended audience for a marketing message about an investment product, a first time investor of limited resources or, a sophisticated investor in hedge funds?
  • PR firms should inform their clients of the need to comply with the FTC Guides and include disclosures that endorsers are paid to provide their opinion in all content, even in letters written to request media bookings.
  • PR firms that are promoting a product or service that is regulated by another governmental entity should include appropriate disclosures and risk information in the marketing message for those regulated products.  In 2012, the Food and Drug Administration sent a warning letter to a pharmaceutical company for failing to include required risk information about a product in pitch letter accompanying a press release.  Although the press release contained the required risk information, FDA found the product to be misbranded because the media pitch letter did not contain the required risk information.

There are other issues Michael addressed concerning federal laws with respect to native content – and yes, this all applies to PR; and not just advertising agencies:

  • Disclosure.  Marketers should be especially cognizant of providing clear and conspicuous disclosure of a sponsored story in situations in which native content appears across multiple social platforms, such as re-blogs or re-tweets.  Each time the paid content is used, the disclosure must be clear and conspicuous.
  • Third Party Contracts:  Marketers or their PR firms must ensure that the disclosures used to identify sponsored content are recognizable and understandable to consumers. PR firms may also wish to consider including a provision in their contracts with online publications requiring the publisher to distinguish between paid and editorial content.
  • Review Native Campaigns for Intellectual Property Issues.  Agencies and PR firms typically bear the burden of responsibility for ensuring any content (including native content) does not infringe any copyrights, trademarks or other intellectual property rights held by others.  All integrated content should be carefully screened for potential red flags, especially when user generated content is involved.
  • Keep Brand Strategy Top of Mind. The media and publishers should make sure that there is consistency between the message of paid content and the overall editorial content and brand.  Even with adequate disclosures, the virtue of native content – that it can fit seamlessly with editorial content – can cause PR problems if it conflicts with brand values or otherwise adversely affects consumer loyalty.
  • Establish clear guidelines.  Every PR agency should have guidelines for the use of native or paid content, separate and apart from other guidelines they may have.  This is increasingly important given the recent explosion in the variety of mobile and online devices via which we all receive native content.  These guidelines should set parameters to ensure that paid content is distinct in design, style and format from editorial content.

Even those of us who are confident we know this terrain should recognize that the explosion of the Internet and social media present a whole new set of issues. Mike does a great job of laying out the basic issues, but I think it’s a good idea for PR pros to have some sort of guidance from their own legal counsel as well.

At some point, federal regulation might catch up with the fact that communication in the Internet age is an uncontrollable beast. But that day isn’t today, and you don’t want to be the test case when it comes.

We’re not ad agencies! You can probably explain that to your mother. It doesn’t appear that the FTC cares.


 

Ann Willets is president & CEO of Utopia Communications, Inc. Ann has over two decades of experience conducting successful public relations campaigns in a variety of industries. She has worked in both large and small agency environments as well as in a corporate setting. In the course of her career, Ann has managed public relations/marketing communication programs for a variety of clients, garnering over 26 prestigious national awards. Ann currently serves as a member of PRSA’s Board of Ethics and Professional Standards. 

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