## Facts

- American Media, Inc. (AMI) owns and publishes *SHAPE* fitness magazine and sells SHAPE-branded consumer products, including SHAPE Water Boosters (a flavored, concentrated nutrient product added to water).
- Through its routine monitoring program, the National Advertising Division (NAD) reviewed content in the September 2013 issue of *SHAPE* magazine.
- The challenged content was an article captioned “news” about hydration and health that recommended SHAPE Water Boosters and presented objective statements about the product’s attributes.
- The “news” item closely resembled other genuine editorial news items in the same issue in format, tone, and placement.
- NAD viewed the “news” item as advertising by AMI for its own product that was presented in a way that could be mistaken for independent editorial content.
- NAD raised concern that readers may give greater weight to objective product statements when those statements appear as “news” rather than as a clearly identified advertisement.
- AMI argued that *SHAPE* readers are sophisticated, educated consumers and would understand that a SHAPE-branded product is connected to *SHAPE* magazine and its publisher.
- AMI also relied on contextual cues in the issue—an editor’s note and two full-page advertisements for SHAPE-branded products—to argue that readers would not be misled about the commercial nature of the “news” item.
- AMI maintained that, because the magazine and the product shared the same SHAPE name, no additional, explicit identification of the “news” item as an advertisement was necessary.

## Issues

1. Whether AMI’s “news”-formatted magazine item for SHAPE Water Boosters was likely to mislead or confuse reasonable consumers by blurring the line between editorial content and advertising.
2. Whether shared SHAPE branding, reader sophistication, and other contextual cues in the same issue were sufficient to communicate that the “news” item was an advertisement, without clear labeling on the item itself.

## Decision

- NAD concluded that advertising presented in a format that looks like editorial content can mislead or confuse consumers because consumers may assign a different weight to editorial “news” content than to advertising.
- NAD found that embedding objective product statements for SHAPE Water Boosters within content styled as a “news” article risked causing readers to treat the claims as more objective or independent than they were.
- NAD determined that the net impression of the piece—its “news” caption and editorial look—created a problematic ambiguity about whether the content was editorial or advertising.
- NAD was not persuaded that the SHAPE name match, the asserted sophistication of the readership, or other ads and editorial material elsewhere in the issue adequately resolved the ambiguity for the challenged item.
- NAD recommended that AMI modify or discontinue the format so the content would be clearly identifiable as advertising.
- The case disposition was recorded as “Modified/Discontinued.”

## Legal Principles

- The format and context of an ad can create implied messages; NAD evaluates the net impression, including headings such as “news,” layout, placement, and similarity to editorial content.
- Advertising that mimics editorial “news” content may be deceptive if it is likely to confuse consumers about whether the content is independent editorial material or commercial messaging.
- When objective product statements appear in editorial-like content, clear and conspicuous identification as advertising is needed to avoid consumers giving the claims added credibility because of the surrounding editorial context.
- A shared brand name between publisher and product, and generalized claims about audience sophistication, do not eliminate the need for clear identification when the content itself looks like editorial material.
- Disclosures and identifications should be tied to the specific item at issue; cues located elsewhere in a publication may be insufficient if the challenged piece, standing alone, appears to be “news.”

## Conclusion

In NAD Case No. 5665, NAD determined that AMI’s SHAPE “news” item for SHAPE Water Boosters functioned as advertising while resembling editorial content, creating a risk that readers would be confused about the content’s nature and give undue weight to its objective product statements; NAD therefore recommended that AMI modify or discontinue the format to make the advertising clearly identifiable.


American Media, Inc. (Shape Water Boosters), NAD Case No. 5665 (2013)