As generative artificial intelligence (“AI”) makes synthetic human performances increasingly realistic, New York and California have enacted disclosure requirements to help consumers tell synthetic performers from human ones in commercial advertising. New York’s law governing synthetic performers in advertisements, NYGBL sec. 396-B, took effect on June 9, 2026. California followed with a similar statute, SB 1050, taking effect January 1, 2027, which seeks to balance advertisers’ commercial speech interests against the risk of misleading consumers. The two laws share a common goal, but they differ in several important respects—and those differences matter for any advertiser running campaigns in both states.

 

Who (or What) Counts as a Synthetic Performer?
The threshold question—what counts as a synthetic performer—has different answers in each state. Both states focus on digital figures that are not a readily identifiable natural person, but they define “synthetic performers” differently. New York casts a wide net, defining a synthetic performer as a non-natural person that (i) is digitally created, reproduced, or modified using generative AI or non-AI visual effects achieved through software algorithms, and (ii) is intended to create the impression that that person is engaging in an audiovisual or visual performance. New York requires disclosure regardless of how much the synthetic performer is used, so even minor roles are covered. New York also applies a subjective test that asks whether the advertiser intended to create the impression of a human performance. California’s definition is narrower: it reaches only human-like digital figures, voice or representation created by generative AI that play a prominent role in the advertisement. And California applies an objective test that asks whether the advertisement creates a realistic impression of a natural person.

 

Carve-Outs and Safe Harbors: Where the Exemptions Diverge
The two statutes also differ in the exemptions and safe harbors available to advertisers. Both states exempt advertisements for expressive works such as films, television, and video games, provided that the use of the synthetic performer in the ad is consistent with its use in the underlying expressive work. New York, however, also exempts audio advertisements and AI-assisted translations, whereas California’s disclosure requirement extends to synthetic performances in radio and other audio formats. New York’s disclosure obligation also applies only where the advertiser has actual knowledge that a synthetic performer is used in the advertisement. California has no such knowledge requirement, so California advertisers must proceed with caution, because they may not even be aware that an advertisement triggers the disclosure requirement.

 

Who Must Disclose, and How?
The two states also impose different requirements regarding who must make the disclosure and how it must be presented. In New York, the obligation falls on anyone who creates or produces the advertisement. California’s law binds anyone who creates the advertisement or causes it to be published. New York requires a “conspicuous disclosure” of the synthetic performer but offers no examples of a satisfactory disclosure. California requires a “clear and conspicuous disclosure,” but then puts some meat on the bone: the disclosure must be easily identifiable, such that a reasonable consumer would readily notice, read or hear, and understand it. In assessing compliance, California considers the disclosure’s proximity, placement, and wording, and even identifies acceptable language such as “this performance features a synthetic performer” or “no human performer is depicted.”

 

The Real Risk: Penalties You Can Price Versus Class Actions You Can’t
The most significant practical difference between the two laws may be enforcement exposure. New York does not expressly create a private right of action. Instead, it authorizes a civil penalty of $1,000 for a first violation and $5,000 for each subsequent violation. California, by contrast, treats a violation as false advertising under Business and Professions Code Section 17500, exposing advertisers to private actions—including consumer class actions—and to the remedies and penalties available under California’s existing False Advertising Law and Unfair Competition Law. The difference is not just one of magnitude, but of predictability. In New York, the risk is defined: advertisers know the penalty schedule and can estimate their exposure for non-disclosure with reasonable precision. In California, the risk is open-ended. What a class action will ultimately cost—in remedies awarded, defense costs, or settlement value—depends on variables such as the size of the class and the relief a court is willing to order, all of which are difficult to predict at the outset. That uncertainty makes it far harder to assess potential damages exposure for a California violation, and it is a compelling reason for advertisers to tailor their compliance programs to California’s stricter requirements. SB 1050 also provides for a court order requiring advertisers to remove violative ads from public access and stop accepting payments for the ads’ distribution, and a fine of up to $2,500 per violation or jail time of up to six months may be imposed.

 

Moving Forward: Practical Steps for Advertisers
These differences create several important compliance considerations for advertisers using AI or visual-effects technologies. Advertisers should audit how vendors and internal marketing teams use AI and visual-effects software, and include an appropriate disclosure where required. Because New York offers no guidance on the form of disclosure, following California’s “clear and conspicuous” protocol may be the most reliable way to satisfy both states. Advertisers should also remember that, in New York, any use of a synthetic performer triggers disclosure unless the advertisement only involves AI-produced audio. And advertisers operating in California should take particular care because, unlike New York, the California statute has no actual knowledge limitation.

 

With California’s law taking effect on January 1, 2027, advertisers should act now. First, review and update agreements with ad agencies, production vendors, and content creators to require notice of any use of synthetic performers and compliance with applicable disclosure requirements. Second, expand legal and clearance review processes to specifically address the use of AI and visual-effects technologies in advertising content. Third, educate creative and marketing teams on the new disclosure laws, including what triggers disclosure in each state and what constitutes an adequate disclosure. Finally, maintain records of AI use and disclosure decisions to support compliance and defend against potential claims.

 

Abigail Moore, a law clerk at Baker Botts, assisted with the preparation of this article.

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