• by Wendy Davis  @wendyndavis, Yesterday

Omnicom and IPG clients that care about brand safety may soon have to fend for themselves, thanks to the Federal Trade Commission.

That's according to Harvard Law School professor Rebecca Tushnet, who tells MediaPost that the FTC's unprecedented proposed conditions on Omnicom's $13.5 billion merger with IPG will prevent it from helping companies avoid having their ads appear next to "lawful but awful" content.

"Clients are going to be on their own in doing brand safety," says Tushnet, an expert in both First Amendment law and advertising law.

"Omnicom is not going to be allowed to help them," she adds.

Tushnet says that while the FTC's conditions will allow Omnicom/IPG to respond to instructions from clients, the holding company's agencies won't be able to offer clients a brand safety package.

"If you don't want your stuff to be shown against Nazis, you're going to have to figure out how, and instruct Omnicom accordingly," she says.

The FTC's proposed order, unveiled Monday, includes conditions prohibiting Omnicom/IPG from directing ad dollars based on a publisher's "political or ideological" views, and also from relying on “exclusion lists” (or "other means of differentiating between publishers") based on political or ideological views.

While the proposed order allows Omnicom/IPG to use exclusion lists developed "at the express direction of a particular client," it prohibits the agency from sharing those lists with any other clients or third parties.

Tushnet predicts that large brands "still have plenty of incentive to do brand safety," but says it's unclear what kinds of instructions they'll be able to give on their own to Omnicom/IPG.

Another proposed term prohibits Omnicom/IPG from declining "to deal with advertisers based on political or ideological viewpoints of that advertiser."

In other words, Omnicom/IPG wouldn't be allowed to turn down business from a company solely because it wants to advertise "lawful but awful" material -- such as Ye's swastika shirts.

The FTC will accept comments on the proposal for 30 days after it's published in the Federal Register.