In an increasingly digital world, how often have we found ourselves saying, “This must be AI”? Advertisements across retail stores, social media platforms, and television screens can appear so lifelike that consumers often question if what they are seeing is real. As these technologies become more prevalent in our homes and workplaces, they raise an important question: When an advertisement contains AI-generated content, should consumers be told?

Recent consumer research suggests that transparency is becoming a growing priority for consumers.  A Gartner survey showed that 68% of consumers regularly question whether the digital content they see is real, while Clint reported that 63% of U.S. consumers think that brands have a duty to disclose when they use AI in marketing.[1] In response to these concerns surrounding marketing authenticity, companies have increasingly emphasized that their advertisements are created without the use of Artificial Intelligence, effectively making a disclosure in itself.

To date, there are no U.S. federal statutes or administrative regulations that specifically mandate the disclosure of AI in marketing. Instead, the Federal Trade Commission (FTC) regulates disclosures more broadly by prohibiting unfair or deceptive trade practices.[2] Accordingly, AI-enabled advertising may implicate the FTC Act when its use results in a false or misleading representation or otherwise deceives consumers.

Many states have taken matters into their own hands and enacted laws that address the use of Artificial Intelligence. Effective as of June 2026, New York has amended General Business Law § 396-b, to require advertisements that use a “synthetic performer”, to conspicuously disclose that use. [3] Under the statute,  a “synthetic performer” is defined as digitally created AI asset that is intended to give the impression that it is performing as a human performer who is not recognizable as any identifiable natural performer.. However, disclosures under this law are not required for expressive works such as motion pictures, video games, or audio advertisements used solely for language translation of a human performer. Violations of this statute impose civil penalties of $1,000 for a first violation and $5,000 for subsequent violations.

While the legislation surrounding disclosures of AI use in marketing is still developing, there is an overall understanding that honesty and transparency are necessary to avoid consumer deception.  Accordingly, companies developing AI-generated campaigns should assess whether their advertisement falls within the statutory definition, and whether any exception may apply.

Thank you to Antonia Rodriguez for her research and writing assistance.

[1] Brands Adopt ‘No AI’ Disclaimers to Stand Out Amid the Slop https://www.wsj.com/cmo-today/brands-adopt-no-ai-disclaimers-to-stand-out-amid-the-slop-a92352af 

[2] 15 U.S.C.S. § 45

[3] N.Y. Gen. Bus. Law § 396-b