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BOB: This is On the Media, I’m Bob Garfield. Native advertising, as we have previously discussed on this program, is the practice of publishing material prepared by or for marketers that resembles the actual editorial content surrounding it. Back in the prosperous old days, it was called “advertorial,” and represented a marginal segment of the ad industry. But suddenly it is in vogue, because  now that publishing mainly lives online, where consumers can decide whether to view ads or not, at least 95.5% of us encountering obvious advertising vote no.

Did you know that when you actually click on a banner ad, you literally get taken to a page that reads, “hey, is everything okay, I’m presuming you passed out and hit your head on the keyboard, I’m calling an ambulance right now.”

That was John Oliver, on HBO’s Last Week Tonight, getting to the nub of the problem: because we in the audience treat all ads as spam, an overwhelming percentage of online publishers have rushed to help marketers make the spam look more like real ham. Despite industry guidelines on clear labeling, standard practice is the opposite: identical text fonts, layout and headline treatment for everything on the page. Even the most prominent publications employ wiggle words, such as “sponsored content” to avoid identifying an ad as an ad, while claiming total transparency.

You’re like a camouflage manufacturer saying “only an idiot could not tell the difference between that man and foliage. I mean, look, the camouflage clearly states ‘not foliage’ on the collar.”

Till now, one paragon of truth-in-labeling has been The New York Times. But recently, even the Times has softened restrictions, for instance by significantly lightening the shade of the blue bar denoting native, and by saying, instead of  “paid for and posted by Dell” simply “paid post." The matter of flimsy disclosure has captured the attention of the FTC, which has considered regulating native. In anticipation, Professor David J. Franklyn of the University of San Francisco School of Law, has been researching readers’ ability to distinguish native ads from editorial content -- and at least half of us, he says, cannot. I asked him if the relatively subtle backsliding by the Times should alarm us.

FRANKLYN: We should be concerned and we should be I think a little bit angry and appropriately rebellious David Hyman from the University of Illinois and I are doing this research under the auspices of the McCarthy Institute for the study of consumer perceptions online. And we're doing it because we are afraid or angry or concerned or have a hypothesis that some big cultural shift is going on and it's been going for I think about the last 10 years. And it is this erosion of the boundary between independent editorial content and paid content. And the erosion of consumers' ability to differentiate between the two and then the conditioning of consumers willingness to accept it. So what do you do about it now?' I was at an FTC conference last December where the FTC realized this was a problem and gathered together a lot of people. Most of the people weren't academics like myself they were people from industry who were engaged in native advertising. They took the stage one after the other and proceeded to explain to the FTC regulators who were sitting in the audience how it was in their self-interest and their company's interest and their client's interest to make sure all of this was very transparent and very disclosed because if they didn't do a good job at that they would ultimately - their clients, the brands would lose the trust of consumers. And I thought to myself: you've got to be kidding I can't believe they're sitting there and expecting us to believe this .

GARFIELD: Now David, I have to say, I was at the same conference. I was presenting at that conference and I was saying aloud what you were thinking which is that these people are lying. Because, while everyone got up there testifying that it was in their best interest to disclose, disclose, disclose in practice they were all going through all sorts of gymnastics not to disclose. Including these extremely fuzzy terms like 'sponsored host.' It's not hard to disclose advertising. You know what word works very well? Advertising. Nobody is using that term at all. But the FTC was paying attention. What are they going to do?

FRANKLYN: Thanks why I'm doing the research with Professor Hyman we're trying to figure out what can be done and to develop empirical evidence to say, 'this is what works. you've got to say 'paid advertisement' you've got say it here. At the top. And at the bottom. Not over here off to the left which is the word 'paid post.' We're experimenting with other disclosures. Because we want to put together some data that will support real best practices. And I don't think this industry is self-regulating well. They don't want to be regulated that was clear from the conference.

GARFIELD: There's two sides of this conversation. One has to do with simple consumer protection. But the other questions is what is at stake editorially. If publishers let advertisers camouflage themselves as editorial content they're doing so because editorial content exactly the trust you were just describing. What happens if you barter away the very trust that is the soul of you enterprise.

FRANKLYN: I think a lot of things happen. Ultimately the risks that we're facing are a drying up of a truly independent editorial media that speaks its mind. That speaks opinion. That criticizes the government. That we know when it's criticizing the government it's not being paid to do so necessarily by somebody, that we can differentiate between information that we think is reliable and can trust and information that we don't think is reliable and we don't trust. Not just so we can make purchasing decisions. But so that we have media with some degree of editorial independence and integrity and that doesn't feel it has to compromise that at every turn, just to stay in business. Because if you can't beat'em you better join'em.

GARFIELD: And there's my question for you David: Is the New York Times suddenly, um, joining them?

FRANKLYN: Yeah I think it is. The very fact that they have entered this market in a way which includes writing some of the advertorial apparently in house. It's startling. It isn't the New York Times I grew up with. So you, yeah, we should all take a breathe and have a pause of reflection about this moment in our media cultural development. And ask whether we are being sufficiently attentive to the erosion of trust values that we have otherwise tried to protect.

GARFIELD: David, thank you very much.

FRANKLYN: Thanks for having me.

GARFIELD: David J. Franklyn is Professor and Director at the McCarthy Institute for Intellectual Property and Technology Law at the University of San Francisco School of Law. We contacted the New York Times, which declined to make anyone available for an interview