Did Peyton Manning's Budweiser marketing break the FTC's advertising rules?
When Peyton Manning told CBS on Sunday that he would celebrate his Super Bowl victory with, among other things, "a lot of Budweiser," it immediately raised some eyebrows from viewers already weary after a long day of being accosted by advertising.
Manning's glee was strange for a few reasons. The first is that since 2008, NFL players are not allowed to endorse alcohol, according to a rule imposed by chief Roger Goodell. Specifically, the NFL bans player endorsements of "companies that promote alcoholic beverages when the target audience of the event, program or facility is under the legal drinking age."
Even though the entire Super Bowl is sponsored by Bud, theoretically the rule against endorsements still applies to individual players. So Manning certainly flouted that one — as he's done before, as far back as 2014.
Second, Manning thumbed his nose at the Federal Trade Commission, which has its own rules about how celebrity endorsements should work.
This one gets a little more complicated.
Here's what we know: Manning is a savvy businessman, and he apparently wanted to boost his business interests with his shoutout.
The gridiron star has a part ownership stake in two distributors of Budweiser parent company Anheuser-Busch InBev.
See the Broncos' Super Bowl celebration
Manning provided another, silent plug for another of his business interests. Manning gave Papa John's CEO John Schnatter valuable airtime in the form of a post-game embrace. Manning owns several of the pizza chain's franchises and has often appeared in its commercials.
They didn't pay Manning, as they took pains to point out.
There's a reason for this rapid, public disavowal. In fact, it would have been a major violation of Federal Trade Commission rules if Budweiser or Papa John's had paid Manning.
The FTC has strict guidelines as to how celebrities and other spokespeople are allowed to endorse products without deceiving the public.
And according to advertising lawyer Jeffrey Greenbaum of New York-based law firm Frankfurt Kurnit Klein & Selz, some of Manning's generous marketing freebies to Bud might have just touched the line of what the FTC considers open and transparent advertising.
The FTC's rule dictates that any spokesperson endorsing a product before a big audience like the Super Bowl must disclose any type of business interest they have in that product's sales.
"If a celebrity has a financial interest in the sales of the products, I think it's very likely that the FTC would say that's a fact that requires disclosure," Greenbaum said.
The FTC declined to comment on or confirm or deny individual investigations to Mashable.
What is "material"?
At issue is whether Manning's stake in the businesses constitutes a "material" financial interest in sales of Budweiser. "Material" is the legal word for "big or relevant enough to influence a person or a company's actions."
If it does, which Greenbaum says seems likely in this case, then Manning has an obligation to let people know about it at the same time as he is shouting out the brands, so viewers know his views are not objective.
The FTC is on the alert for the increasingly nebulous, sometimes sneaky, ways that advertising has crept into media and national events, according to Greenbaum.
The endorsement rules were put in place a few years ago. More recently the effort has resulted in guidelines for how native advertising — articles paid for by brands to look like editorial content — should be labelled.
"They're very focused on ensuring that when consumers see content — no matter what the medium is — they understand the full context in which those statements are made," Greenbaum said.
In 2014, home security company ADT drew the ire of the FTC when it failed to disclose that it was paying safety and technology experts to endorse its wares.
Another common source of broken rules: celebrities who already endorse a company throw out a tweet or other plug. Even though the tweet may not be part of the celebrity's contract, the FTC still requires them to disclose the relationship.
By that measure, Manning's Budweiser plug heard round the world — without any announcement of his business interests — would certainly be a challenge to the FTC's rules.
But will Peyton Manning get in trouble? Probably not.
Greenbaum doubts whether the FTC would actually pursue any action against Manning further than a statement of its concern.
If the FTC does go further than that, it would likely result in a slap on the wrist and a warning not to repeat the mistake.
In any case, the agency can't actually fine anyone for the rule, so the most that can happen is a mandated apology or — in extreme cases — a reimbursement to customers.
Manning, it seems, wins again.
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