Cochlear Implant Magazine Ad Gets NAD Attention

Advertising Law

A cochlear implant company has agreed to permanently modify its magazine advertising after the National Advertising Division (NAD) reviewed a problematic ad as part of its routine monitoring program.

The self-regulatory body initiated an inquiry based on an October 2018 issue of the AARP Bulletin. Titled “Ask the Expert,” the Cochlear Americas ad shared a page with an AARP financial advice column, “Your Money.” Identified as a “cochlear implant surgeon,” the author of the advertisement explained how cochlear implants work, with a Q&A section about the benefits of cochlear implants.

In addition, the ad displayed Cochlear Americas’ logo and a link to its website. However, the advertisement did not indicate it was advertising to distinguish it from the surrounding editorial content, the NAD said.

“Regardless of the medium, advertising must identify itself as such,” according to the decision. “An advertiser has the obligation to present its advertising claims in a format that consumers will clearly and unambiguously understand to be advertising.”

The NAD expressed concern that consumers would mistake the ad as editorial content and not realize that it is in fact an advertisement for Cochlear Americas. Referencing a 1968 Advisory Opinion from the Federal Trade Commission (FTC), the NAD explained that by using the format and “general appearance” of a news feature or article, an ad that isn’t designated as such “purports to give an independent, impartial and unbiased view” to readers.

“[T]he FTC has made it clear that it is in the public interest that publishers and advertisers avoid misleading consumers by not placing advertisements whose format simulates that of a news or feature article,” the NAD wrote.

In response to the NAD inquiry, Cochlear Americas informed the self-regulatory body that it would proactively include an “ADVERTISEMENT” banner in any future “Ask the Expert” print ads when they are submitted to the publisher.

Based on this representation, the NAD did not review the advertising on its merits and instead treated the voluntarily modified advertising, for compliance purposes, as though the NAD had recommended its modification and the advertiser had agreed to comply.

To read the NAD’s press release about the decision, click here.

Why it matters: Initiated by the NAD itself, the decision reminds advertisers that they have an obligation to present ad claims in a format that consumers will clearly and unambiguously understand to be advertising. In the case of Cochlear Americas, the NAD found the advertisement at issue did not distinguish itself from the surrounding editorial content.



pursuant to New York DR 2-101(f)

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