The More Things Change: AI and Advertising Law

10/27/2026|4 minute read

It’s conference season, and advertising lawyers (as always) have plenty to talk about. This year, however, one topic seems to stand out: AI. Whether the discussion is about influencer marketing, endorsements, disclosures, content creation or something else entirely, AI seems to find its way in. Notably, much of the conversation ultimately comes back to the same question: How does advertising law apply when AI is involved?

The short answer: largely the same way it always has. Advertising claims must be truthful and substantiated. Product demonstrations must accurately reflect product performance. Images and editing cannot create a misleading impression. Disclosures must be clear and conspicuous. And, as always, net impression remains paramount.

The longer answer, however, is a bit more complicated. While the governing principles remain familiar overall, applying them to AI is not always straightforward. Here are a few of the more nuanced themes we’ve been discussing this conference season.

Beyond Legal Compliance

As AI becomes more integrated into advertising and marketing, companies should be thinking about brand reputation as well as legal risk. The legal question may be whether an advertisement is compliant. The reputational question is whether consumers will trust it and, by extension, you.

Consumer skepticism surrounding AI-generated content remains high, particularly when AI is used to create realistic people, endorsements and imagery. As a result, the relevant question for brands is often not simply whether a particular use of AI is legally permissible but also whether it aligns with consumer expectations and brand values. A campaign that complies with the law may still create reputational risk if consumers perceive the use of AI as inauthentic or insufficiently transparent.

For that reason, brands should consider developing strong internal AI policies that go beyond what is legally required. Policy categories could include ensuring human oversight and approval; protection of brand voice, visual identity and brand assets; data privacy and security safeguards; fact-checking and hallucination prevention; and processes for compliance review and disclosure evaluation.

AI-Powered Search Results and Native Advertising

One area where strong internal governance and a firm understanding of advertising law may become particularly important is AI-generated search results.

When consumers ask an AI tool for a recommendation, such as “What is the best ballroom dance shoe?” (a timely question for anyone watching Dancing with the Stars), they typically receive a specific answer rather than the traditional list of search results. That shift raises important questions about transparency and disclosure. Should consumers know when brands have invested in answer engine optimization efforts designed to increase visibility in AI-generated responses? At what point does optimization become advertising? And where is the line between an organic recommendation and sponsored content?

While these questions arise in a new technological context, the underlying concepts are familiar. Advertising law has long grappled with content that blurs the line between independent information and commercial promotion. The rise of native advertising prompted similar debates regarding sponsorship, transparency and consumer expectations. If there is a material connection between the advertiser and the service recommending it, such as payment to promote certain content, then that must be disclosed. As AI-generated recommendations become increasingly influential, those same issues – and same legal standards – are likely to receive renewed attention.

When Every Consumer Sees a Different Ad

AI-driven personalization presents another area where well-established principles may encounter new fact patterns.

As AI enables advertisers to tailor content to increasingly specific audiences, difficult questions arise regarding substantiation, net impression and record preservation. If consumers receive materially different advertising messages, what constitutes “the advertisement” for purposes of a National Advertising Division challenge? Can net impression vary across audience segments? How should advertisers preserve evidence of claims that only certain consumers see?

Again, although AI is a novel technological development, the foundational advertising obligations remain unchanged. Claims must still be supported before they are made. And advertisers remain responsible for the messages conveyed to consumers, even when those messages may vary based on audience characteristics or user behavior.

A Few Truly New Rules

Although most advertising law principles applicable to AI already exist, some genuinely new legal requirements are emerging.

Advertisers using synthetic performers, digital replicas, or other AI-generated or modified content must navigate a growing patchwork of state laws and platform requirements. For example, New York and California have enacted laws imposing disclosure, consent and other compliance obligations on AI content that did not previously exist. See Roll the Disclosures: California Enacts Synthetic Performer Disclosure Law; Contracts, Consent, and Clones: Navigating Requirements for AI-Generated Advertising; Lights, Camera, Disclosures, Consent: New York’s AI Advertising Laws; and Supermodel, Werk! New York’s Fashion Workers Act Takes Effect for deeper discussions of these developments.

International law is evolving quickly as well. The EU AI Act is only one example of the growing number of AI-specific transparency, disclosure and governance requirements that companies must monitor as they deploy AI-powered marketing tools.

Big Takeaway

While AI is bringing massive changes, it is not creating an entirely new body of advertising law. Rather, advertisers must continue to apply familiar principles in an unfamiliar setting. In many ways, AI advertising is simply the latest example of a famous refrain: Everything Old Is New Again.