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Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

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ADventures in Law

From Bread and Butter to Bots, Ad Law Recipe Stays the Same

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Artificial intelligence (AI) may be a relatively new ingredient in the advertising kitchen. But in advertising law, the recipe remains the same. At the National Advertising Division (NAD) 2025 Annual Conference in D.C. <a href="https://bbbprograms.swoogo.com/nad2025" target="_blank" rel="noreferrer noopener">last week</a>, the panel “Hot Topics: From Bread and Butter to AI” served up a clear message: The fundamentals of advertising law are not going anywhere, no matter the technology involved. Whether you are leveraging AI to generate ad copy or selling AI-integrated products, the rules of truth, transparency and substantiation still apply.

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The panel explored how advertising principles apply to new technologies, including AI. It opened with a general discussion of the history of NAD’s enforcement of advertising law with regard to emergent technology. The panel continued with a recognition of AI’s rapid development and implementation and its growing impact on advertising. Like previously emergent technologies (e.g., the telephone, the Internet, and email), AI is a powerful tool that can also be weaponized for deception.

To bridge the gap between innovation and consumer trust, the panel noted that NAD will continue to take on AI cases – just as it has done with other emergent technologies in the past. The panel highlighted that NAD has, in fact, already tackled several AI-related cases on a wide range of products. In addition to case analysis, the panel discussed several scenarios to explore how AI-generated content still needs to follow traditional rules. The cases and scenarios discussed have many important implications, and the panel laid out some practical advice such as:

Claims Must Be Supported When Made: Avoid conveying messages that AI features are available when they are not.

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AI-Generated Advertising Must Be Accurate: Ensure that AI-generated images and/or copy are accurately depicting your products.

Ensure No Other Legal Issues Are Implicated: Ensure that your AI-generated content does not raise any potential right of publicity or intellectual property issues.

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However, the underlying takeaway is that AI-related claims are still subject to existing advertising law standards despite the novel technology.

Although AI is a fast-moving technology, the panel noted that rules and guidelines specific to AI are beginning to emerge. For example, certain states are enacting laws requiring disclosures with regard to AI-generated content in political ads. The panel called special attention to these laws, noting that laws related to AI continue to develop on a state-by-state basis and that they would likely continue to appear in this fashion.

The panel closed with a few major takeaways. First, NAD decisions preceding AI technology apply to future AI challenges. Second, NAD will continue to bring AI-related cases, whether they are compliance cases or challenger-brought. Third, the panel warned companies to not overpromise the benefits or misrepresent the features of generative AI. And finally, the panel reminded in-house counsel that they are on the front line of generative AI policy and use decisions.

AI is here to stay. This much is certain. And as the panel made abundantly clear, the fundamentals of advertising law still apply. So, make sure that when you are advertising with or for AI, you follow the recipe laid out in advertising law – or you might be cooked!

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