The New FTC Guidelines on Endorsements by Bloggers

blog-for-food

The Federal Trade Commission has issued new guidelines that go into effect December 1, 2009 regarding the use of endorsements and testimonials in advertising that for the first time specifically include blogs.  While there’s a ton of rumors swirling around about what this means, here’s my two cents worth, read from my viewpoint as an attorney, albeit one who does not currently practice in this field professionally.

Brief History

Back in 2007, the Federal Trade Commission (FTC) published a notice in the Federal Register seeking comments from the public on the existing Guidelines Concerning The Use of Endorsements and Testimonials in Advertising, looking for information about the usefulness and the economic impact of the Guides, as well as seeking information about the increased use of consumer endorsements.  The FTC then published a notice in the Federal Register again in November of 2008 discussing the comments received and posted proposed revisions to its Guide, requesting comment on the proposed revisions. (This is all required under the rules of Agency Law, and has been done precisely as required.)
Seventeen comments from various advertising concerns were received, including, most relevant to online content producers, BzzAgent, Word of Mouth Marketing Association, Public relations Society of America (PRSA), the Direct Marketing Association, the Interactive Advertising Bureau among others.

The final version of the new Guidelines published October 5, 2009 will become effective as of December 1, 2009, and are no longer subject to revision or public comment.  For the reference librarians among you, you can find the new Guidelines at 16 C.F.R. part 255, or view them online by clicking here.

What are the Guidelines and Why are They Necessary?

The whole point of having FTC guidelines regarding endorsements and testimonials is to try to ensure truth in advertising, so that if the typical consumer sees an ad on TV, in a magazine, or online, they are aware it is an ad, and that the information contained within it is reasonably truthful and reliable.  The FTC is in charge of enforcing the rules requiring advertisers avoid outright lies and fraud, and advertisers and endorsers are subject to fines for doing so.

The advent of consumer generated content on a mass scale has radically changed who can provide information, opinions, endorsements and testimonials.  So where do bloggers, podcasters, and other user generated content producers fit into this mix?

The “New” Rules of Disclosure

The rules themselves are not particularly new, but they do extend to cover new media sources, consumer generated content, and attach the same standard used for businesses, celebrities and the like to the “Mom & Pop” blogging world.  Blogging as a medium is now going to need to take itself more seriously, and bloggers are going to have a new level of professionalism expected of them as it concerns endorsements or reviews that have some sort of exchange or quid pro quo attached.

Yes, I can still complain that the service stinks at my local grocery store.  But if the local grocery or one of its competitors gave me anything or paid me to write a review of their service online, I need to disclose that in my review, so people can discern any potential bias.

So How do I know if I am doing an Endorsement?  Am I equivalent to an expert or celebrity?

The Guidelines expressly define what constitutes an endorsement or testimonial and treats both identically.  Endorsements “must reflect honest opinions, findings, beliefs or experience of the endorser.”  They “cannot convey any express or implied representations that would be deceptive if made directly by the advertiser.”  This means the endorser is covered by the same rules that would apply to any ad agency- there is no longer any safe harbor for consumer generated content that is exempt from the Guidelines.  Likewise, advertisers have to disclose the connections between themselves and endorsers, and are liable for any false claims made by their endorsers.

The rules further state that as used in the rules, a product includes any product, service, company or industry, and an expert is defined as “an individual, group or institution possessing as a result of experience, study or training, knowledge of a particular subject which is superior to what ordinary individuals generally acquire.”

In plain english, this means:

– Almost anyone can qualify as an expert for the purposes of the rules, by just being able to review a product or service.

-If you receive money or any sort of exchange, including a free product, even if unsolicited, you must disclose this in the endorsement somewhere.  You can’t disclose it after the fact- it needs to live with the endorsement.  Writing about it, positively or negatively, does not matter- you are effectively an endorser and need to disclose this “quid pro quo”. (Section 255.2 regarding Consumer Endorsements).

–  If you are endorsing something, you must be a bona fide user of the product at the time the endorsement is given.  So writing a positive review about a book you didn’t read is deceptive;  writing a review about a product you intend to try but haven’t yet is deceptive as well, IF you have received any sort of exchange.  I can write about how I like my R16 mixer and say anything I want about it, positively or negatively, because I paid for it myself, even if I haven’t put it through all its paces.  I don’t have any disclosures to make because there’s no quid pro quo in any way, shape or form.

-The advertiser is liable for any false claims you make.  If I was paid or got a free service in exchange for trying it out and writing about it or podcasting about it, and I decide to say that “X brand soda is not only tasty, but cured my cancer” (or something equally unprovable and clearly a false claim) the advertiser as well as myself are liable and can be fined for that statement, No Matter How Large My Blog Audience Is or Is Not.

There are great examples in the actual guidelines I recommend you read if you have any questions.  It should clarify most situations if you have any questions.

But I think there are inevitably some gray areas- here are some personal examples:

-Chris Brogan is a close friend who has written a book.  I bought the book, but then I was also sent a review copy as well.  If I write a review, what are my disclosure requirements?
Well, I have received the product for free, but I also paid for it.  I am also friends with the author, and may have some bias because of it.  The BEST practice is to disclose both the copy received and the friendship along with the purchase- that way, everyone is clear when reading the article about potential bias.  I could review the book without disclosure because I purchased the item and probably get away with it.  However, full disclosure of the circumstances surrounding the review or discussion of the book is clearly the best policy, as it always has been.

-Another close friend, Andy Quayle,  has an internet hosting service I use for my blog as a paying customer.  If I talk about Tubu to friends or blog about it, what do I have to disclose if anything? I don’t have to disclose that I know the owner because regarding this “exchange”, I am just like any other commercial consumer- there is not reduced price or free service given with an expectation of advertising by word of mouth or otherwise in return.  But even when talking to my friends, I tend to do disclose  that I know Andy anyway, because it actually tends to add rather than subtract credibility on the whole.  If you tell someone “I use this service and it’s great- I know the guy and he really cares about his customers”- this benefits you, the business and your friend who know all the facts and have a good basis to judge your credibility and bias on the issue.  Lack of disclosure doesn’t substantially change the message, but it may lose some of its value as well.

A product available on Amazon.com starts to receive a bunch of reviews that are part of an elaborate joke or hoax, equivalent to being “Rick Rolled”.  As someone writing a review, are you liable?  No.  This is still fine, unless you were paid or received a free product or service.  You can still refer to a product sarcastically or rant or anything you like on Amazon or elsewhere, as long as you weren’t paid to do so and don’t disclose it.  Review to your heart’s content.  And if you were paid or received a free product, disclose it, and you’re fine.

How Does This Effect Celebrity Bloggers?  How will they have to adapt their content, if at all?

Let’s take a quick look at a couple of celebrity bloggers and their businesses, from the outside, and how these new regulations may affect them.

Take Gary Vaynurchuk.  Gary produces Wine Library TV, and this started as a way to build community around wine and sell more wine out of Gary’s family shop.  If Gary is paid by a sponsor to endorse a certain wine, discuss it on his show, or otherwise blog or rant about it, good or bad, he needs to disclose that he recieved payment for that.  If he is sent free bottles of wine even just one, and then discusses it in any way on any of his channels, personal or Wine Library TV, even if it was through a distributor and not from the Company directly, solicited or unsolicited, he needs to tell his viewers that he did not pay for the wine, and where he got it from.

Likewise, if Gary recommends that you attend a conference where Gary gets a hefty speaking fee, he has a commercial interest as does the host, in your attending the conference.  Asking Gary to “pimp” this out to his network is, in essence, asking for advertising over the web, and Gary will need to disclose his financial interest to avoid potential complications.

Likewise,Mommycast.Com is one of the longest running parenting podcasts, and the people behind Mommycast have received some great sponsorships and endorsements.  Some of them, like Dixie and their Aveeno Baby campaign (of which my show, the LD Podcast was a part of last year) are explicitly acknowledged in the audio portions of their show.  Other potential sponsorships or promotional exchange deals, such as when Mommycast went on the Disney Cruise, have not been totally transparent as to what was paid for or sponsored content.  In the future, any such program where there is an exchange of money, endorsements, items, whether solicited or not, will have to be part of the the written, audio and video shows they produce.  They can continue to produce the great content they always have, but they need to disclose what has been given in exchange, if anything, for their endorsement, review, opinion or other representations, regardless if the material is scripted by the sponsor or not.

This also means music shows will need to disclose if they receive free CD’s or downloads from the artists trying to promote their music, book review shows will have to disclose if they did not purchase the books themselves, and review sites looking at commercial products of any type will have to detail anything they received in hopes of review.

While some bloggers like Laura Fitton, a.k.a. @Pistachio have handled this to date by providing a page on their blog with bulk disclosures of all clients and potential interests, the rules are fairly clear and best practices require that the disclosure live along with the content.  Without indicating that there is a relationship in individual blog posts that promote a partner, there is a substantial chance consumers will not scour the website for all existing relationships, so best practice would require disclosure within each audio, video or blog post where an endorsement is made.

Implications for Twitter

Chris Penn and I discussed this a bit today.  “Buzzing” or promoting things for money in 140 characters or less is going to be challenging.  Safety says that you should probably link to a blog post where all detailed disclosures, if any, can be made rather than not disclose.  Twitter is microblogging, after all.  Likewise, we may see hashtags like #PE for paid endorsement take off, to meet disclosure requirements in as few characters as possible.  Tweets from companies directly are not consumer endorsements and are fine.  If you ReTweet someone’s else’s paid endorsement, you have not personally benefited from the transaction, so you are just passing along the message.  Because you haven’t been the recipient of any quid pro quo, you are unlikely to risk any liability.  What’s going to be interesting is to see how the FTC handles mass contests like “Win a Mac Book Air” and how this interacts with the endorsement/paid advertising regulations.  I would expect these sorts of issues will be some of the murkier ones to sort out once the Guidelines go into full effect.

The Good News

This is probably the first time independent bloggers, podcasters and video producers have some up against any sort of formal regulation or rules.  However, it’s already the rules and conditions that most people follow and have self-imposed anyway, as failing to follow these rules harms both your credibility as well as that of whatever you decide to endorse.  This is just another case where good common sense prevails on a day to day basis.

Bloggers, Podcasts and video producers- any producer of consumer-generated content online- are now being treated as real business people and grown-ups.  This will probably result in all of us “producers” being taken more seriously.  Blogging has grown up, and warrants actual rules and regulations- we should be pretty proud.  Likewise, it means we should expect that advertisers and companies treat our opinions and views with more respect as well- the relationships they seek with us will be even more valuable when done correctly, because there will be a clear benefit and avoiding an expensive potential fine of up to $11,000 per post, for violations.  This means advertisers and companies may spend more time talking to and training their blogging staff, street teams and the like, which again, will benefit both the disseminators of the information as well as consumers.

Implications for Advertisers

The implications for advertising through blogger outreach programs has a new level of seriousness, however.  Since ad agencies are liable for any false claims a blogger might make, there may be more review required of potential posts, or requests to remove posts with false claims after the fact, to avoid liability on the side of the advertiser and blogger.  This will start to change the endorsement space, hopefully for the better as each side treats the endorsement and recommendation or review process more seriously than ever before.

At the end of the day, the FTC has put together a reasonable set of guidelines that asks everyone to be reasonably responsible for themselves and what they ask other people to say about them.  While I am eagerly awaiting to see what kind of enforcement actually occurs and how the cases are determined, good common sense and basic disclosure practices adopted by most credible and long-standing bloggers already will keep everyone out of harm’s way.

Just remember, even if it’s free, even if it’s unsolicited, let everyone know.

business, community, economics, education, new media , , , , , , , , , , , , , , , , , ,
  • Pingback: Web Hosting Discount » Blog Archive » The New FTC Guidelines on Endorsements by Bloggers

  • http://www.dailydirectmarketingtips.com Ben Waugh

    Great post. I will read your posts frequently. Added you to the RSS reader.

  • Pingback: The New FTC Guidelines on Endorsements by Bloggers | iblogforextracash.com

  • Pingback: Tweets that mention The New FTC Guidelines on Endorsements by Bloggers | Reading Whitney -- Topsy.com

  • http://www.robinmaiden.com Robin Maiden

    Best explanation, yet, of this issue.

  • http://robhatch.com Rob

    Maybe you addressed this and I somehow missed it. Maybe, I am off the rails on this question.

    What are the implications for ‘link love’? Not for the person making the initial mention or ‘endorsement’, but for the person receiving it.
    Many folks have benefited from a “Brogan Bump”. Is it possible that the value of such a mention, especially when it is reciprocated, necessitates a disclaimer?

    Am I reading too much into this?

  • http://www.ldpodcast.com Whitney

    There is not an inherent “quid pro quo” with someone giving you an endorsement you didn’t solicit- like when people get slammed with traffic from getting Digged, ending up on Mashable, Tech Crunch, etc. You did not pay them and there was no explicit advertising exchange agreement, so this is fine. Now if someone sends Chris a book or present or the like with the hopes of getting an endorsement, if Chris mentions them, he should let us know he got the books or stuff sent to him for free. If Chris links to this post and says “Whit is a friend, read her stuff” that’s an unsolicited endorsement and there’s no pre-arranged or expected quid pro quo other that trust and social currency, so this is fine- it’s social, not a trade thing, even if it ends up giving my business a boost.

  • http://galexi.com Alex Lane

    What might the situation be for an unsolicited endorsement (or one that was solicited by a third party as a way of evaluating my performance and which happens to be good).

    Or is there a fine distinction between a testimonial and an endosement?

    Cordially,
    Alex

  • http://www.ldpodcast.com Whitney

    Hi Alex!

    Testimonials and Endorsements are treated exactly the same way under the new FTC Guidelines. Good or bad doesn’t matter, either. I don’t think you’ve given me enough facts so I can give you an opinion- if you can do it as “Company A asked Sally X to review my work….” If this is like a LinkedIn recommendation, everything is usually disclosed there- your connection to the person, etc. If the recommendation was specifically paid for or sponsored, you may have a disclosure issue- again- each case will be fact specific, but you are always safe to disclose if its relevant to how someone would evaluate the credibility of the recommendation. I’m happy to give you a more detailed opinion if you can give me more facts.

  • http://www.keithburtis.com Keith Burtis

    Whit, as always you protect over us, the community. I thank you for this great description. The LDPodcast Rocks, Whitney Rocks, and no…I was not paid for the comments… however she is a good friend. Do I need to disclose that we chatted on the phone last week? heheh. This is going to be a very interesting ride and will be interested to see if the FTC will stringently monitor and be able to police the space. Thanks Whit!
    -Keith

  • http://www.keithburtis.com Keith Burtis

    Ok, Comment #2. I am sitting here wondering if these regulations make the digital space better? I mean.. who pissed in the drinking water here? Seems to me that blogger/podcasters have been pretty good about being up front and self regulationg. In fact know of no community that holds itself more accountable.

    This being said, will this help ease the spam? How will the FTC know who people are? The internetz are a really easy place to hide. If someone makes an outrageous claim about a product or service and this person is from another country or impossible to find is the company responsible for chasing all of that “crap” down????

    The more I think about it the more I think the FTC will have no jurisdiction to regulate over many of these quotes, comments, etc.

    I’m sorry, I’m thinking out loud here. Seems to me that only the folks that are honest and transparent already will be the ones put under the microscope.

  • http://www.ldpodcast.com Whitney

    Well, since we are friends but have no monetary or medium of exchange, it’s pretty clear- none of this is “trade”, so it’s fine. I can recommend and advocate for you all you want, but if you give me a kick back, I should disclose it! (BTW- Keith makes great wooden bowls and Christmas ornaments- order early!) I am a “customer” of Keith’s woodworking business, and we’ve become friends, but you are not paying me for the endorsement, so again, we’re free and clear of FTC issues.
    It’s when agencies are paying or giving away free product in exchange for a testimonial or endorsement of the product that things should be disclosed. Like most things, if you follow the money or follow the product, the answer and the rules are pretty easy. If there’s not real exchange of anything other than warm fuzzy feelings, you’re good.

  • http://www.ldpodcast.com Whitney

    I hope they make the space better and more responsible. It’s the “I lost 50 lbs in 6 days eating nothing by sawdust!” folks that will feel the pinch; Mommybloggers and others giving opinions about products given to them for free or paid to talk about it by sponsors who need to be careful about disclosures; ad agencies will need to train their bloggers not to make false statements or engage is clear hyperbole about the product. While the agencies are going to be the first ones pinched, I am sure they will make an example of a blogger or two, and then everyone will clean up their act and be as responsible as the majority of people are already.
    The biggest thing is that people know where the bright line is, and stay within bounds, and nothing will change.

  • Pingback: Marketing Over Coffee Marketing Podcast » CutestMarketerCompetition.com – $20 Reward

  • Pingback: Caffiene Dreams: Episode 373 | The CaffiNation Podcast

  • Pingback: What’s New in Social Media? | Communication Leadership

  • http://www.succeedasyourownboss.com Melinda Emerson

    Whitney–

    This is a really helpful blog post.

    As the producer of a week tweetchat, this is a very interesting debate. I ask any author who want to be on #smallbizchat to sent me a book in advance which I read before allowing them to be on the show. I also ask them to donate three books to the show to raffle of to a random existing follower and two copies go to new followers that come on board that night. Sort of like how Rosy O’donnell did when she was on the View.

    Now–I will make sure I disclose what’s going on.

    Best to you–
    Melinda Emerson
    @smallbizlady

  • http://www.ldpodcast.com Whitney

    Hey Melinda-
    As long as you say “books provided by the author” at some point, you should be fine. Twitter definitely poses some disclosure issues because of the character limits- and hopefully, in a good way, this will start to eliminate some of the spammy stuff. I look forward to tuning in to more of your small biz chats myself!

  • http://www.josephfosco.com Joseph Fosco

    Hello Whitney,

    Thanks very much for this information. I was wondering, do these rules have any impact on affiliate programs?

    For example, if I am an Amazon affiliate, and I buy a book. I write on a blog that I think it is a great book, and I have an affiliate link for the book. Is any disclosure required under these new rules?

    Also, do these rules impact content that is already published – do past blog posts have to be updated to conform to these rules.

    Thanks,
    Joseph

  • Pingback: My Thoughts on the FTC Disclosure Rules and Bloggers

  • Pingback: My Thoughts on the FTC Disclosure Rules and Bloggers | Tamasindo Secret & Technology

  • http://yourbloghelper.com Kathy Purdy

    How does this affect magazines, and to a lesser extent, newspapers, who have been doing book and product reviews for years without coming right out and saying, “The publisher sent us this book” or “L’Oreal sent us their new product line”? I have read comments to the effect that “magazines don’t have to do this, why should we?” Is it true that magazines don’t have to, or have they been lax?

  • http://www.ldpodcast.com Whitney

    This is about relationships going forward- Since blog posts are dated, I don’t think anyone should have to go back and revise old posts.
    As for amazon affiliates, if I am talking about a book and put an affiliate link on the blog (and I have a whole page of my favorite books and a link to my aStore on this site, btw) I just say it’s a link to the affiliate store and if you buy a book, I make a few cents on the deal as a referral. That’s full disclosure, and people can decide to use the affiliate link or not- their choice. Probably even over the line of what’s required, but discloses my interest in them using that link. I think that’s fair.

    If you bought a book from Amazon and blog about it, you bought it as a consumer- the real promotional relationship the FTC is concerned about is that between you and the author, and this is a paid for review. If you were reviewing the amazon store and they were paying you for that review, that’s the link in the chain where you would need to disclose.

    Affiliate programs are fine, but there’s nothing wrong with letting people know if they click on the ads on your site you get a few cents- but the rulings here affect Testimonials and Endorsements, not every affiliation- so you have to be able to draw the distinction between an endorsement, and a more passive affiliation relationship.

  • http://www.ldpodcast.com Whitney

    Everyone is going to have to- it covers every testimonial and endorsement. It will be interesting to see how this changes things like the NYT book reviews, or if there will be some general disclosure in the front of magazines like “products reviewed in this article were provided by the companies free/at cost/ etc. for the purposes of garnering our opinion.” That would do it. Consumers Union, that publishes Consumer Reports, specifically goes out and pays for all the products it reviews, so there is no influence like this in the stream of reviews. I think we’re all being held to that standard, or having to disclose what was provided as a review copy.

    And to clarify- these Guidelines go into effect December 1, 2009. That is the effective date. Just because other people are not complying with this Today, does not mean they won’t have to comply after December 1. And like any parent knows, the weakest excuse and justification ever for bad behavior is “JoJo’s mom lets him do it, why can’t I?” There are going to be big changes for some folks using testimonials and endorsements in any form of media. And the big players will probably be the first ones hit with fines. But people saying “Time Magazine doesn’t do this so I am not” are begging for trouble, because Time and every other magazine will have to start doing this after the effective date of December 1.

    I hope this helps- do you have any more questions?

  • http://www.purplestripe.com Lynette

    Great information as usual Whitney! I happen to work a lot with both bloggers and agencies on the whole disclosure issue & have refused to work or consult with either side that chooses not to disclose (so far as trying to hide it). I’m glad to have this on my side now! I can already see that my business is busier now than ever with working with both PR and bloggers / mommybloggers on this very issue (among others). I will be sure to point them all back to this post and all yours wisdom!

  • Pingback: Sunday Reading :: *Insert Literary Blog Name Here*

  • Pingback: The New Rules About Blogging for Money

  • Mark

    Great post, Whit. There is still an outstanding question (which may have been addressed in the comments which I didn’t read because there are A LOT of them an I’m on my iPhone right now:

    What about existing content? Do content owners need to go through their catalog of posts, Podcasts and videos to make sure the disclosures match the guidelines? Or, are existing modes of disclosure being grandfathered?

  • http://www.ldpodcast.com Whitney

    Since the Guidelines go into effect December 1st, and since by their very nature, blog posts are dated, I don’t think there’s anything we can do about past content- but compliance after 12/1/09 should be taken seriously. Of course, content lives “forever” on the web, but I think the date of compliance is the important part here, and there’s nothing that leads me to believe anyone would have to go back and critique all of their past content for disclosure.

  • Mark

    Thanks, Whit!

  • http://www.MyNeighborHOODkitchen.com Christina Sanchez Hood

    Thank you for writing such a clarifying article! Simplification is key to so many things in life.

    I am in process on having two individuals review a few products from my primary business and now I have a better understanding how their reviews should be noted on my website. Your mention of the gray areas; especially within your own life, is a good example of how this new ruling is going to be a topic of discussion for some time.

    Thanks Whitney.

  • http://unconventionalwisdom.wordpress.com Rob (a.k.a. Katherine’s Tech Guy)

    Nice, straightforward explanation, Whit. Thanks for taking the time to lay it out for us.

    Some thoughts that occurred to me, though it’s probably too early to expect anyone to have answers for how these may be handled, and I would enjoy hearing what you think:

    – You mentioned “music shows will need to disclose if they receive free CD’s or downloads from the artists trying to promote their music” — what about music that’s licensed for free to podcasters, either under a CC license or under a “terms of use” agreement with a site like Podsafe Music Network (or whatever they’re called now), IODA Promonet or Magnatune? Lots of podcasts, not just music shows, use CC or other podsafe music and already have to provide attribution to comply with the terms of the license. Will we now, under the terms of the FTC guideline, have to also disclose about the music being provided “free” in exchange for allowing it to be used on the podcast and as result promoting the artist and the music?

    – My understanding about jurisdiction (which I think I may have got from you off Facebook)is that the rules apply to blogs/podcasts whose content is hosted on servers in the US, regardless of where the content producer is domiciled or their citizenship. I’m wondering if content producers will start seeking out off-shore hosting in order to shield themselves from the rules — whether they plan on deliberately circumventing them or just to cover their backsides in case they slip up sometime (it could be a costly “oops!”). And there are many of us outside the US who use free services to host our blogs — mine’s on WordPress.com, for example, and I have no idea where the content is hosted. It could well be in the US, in which case the FTC rules will apply to me (not that anyone is likely to be comping me stuff to review or endorse, given my limited audience/reach). Which raises a couple of other questions: what happens if content that was hosted outside the US gets moved to a server inside the US, without the knowledge of the producer? For grandfathered content that was produced before 12/1/09 that would appear to be safe based on your reasoning, but what about non-disclosing content authored after that which was initially stored off-shore (and therefore not within FTC jurisdiction) and subsequently moved to a US server? Does the content producer then become subject to being fined?

    OK, I grant these are some pretty esoteric situations, but a fine of up to US$11,000 is sufficient to make me a bit concerned about falling afoul of the FTC by accident.

  • http://www.ldpodcast.com Whitney

    I think that’s the biggest question, Rob- what can the FTC realistically regulate when it comes to international borders? They can certainly regulate things in this Country and perhaps the IRS is looking into whether or not “blogola” becomes a taxable income generator. But will something like this lead to “off-shoring” for the spam-a-lot folks? Perhaps. There’s a lot of that already. But hopefully it will lead to a little more transparency and a little less spam on places like twitter.

    As for creative commons, it is, of course, not specific. You could argue that it is a commercially bartered transaction that should be disclosed, but the terms of the Podsafe Music Network already ask podcasters to disclose who the music came from in the first place, so that acts as disclosure in and of itself- nothing really should change, and the Podsafe Music Network acts as a dating service for Podcasters looking for music to use, and musicians looking to have their music played. If the credit is given as we all should be doing, that should be adequate disclosure, right there. That would be my call.

    And frankly, I think the FTC will be going after the most obvious violators first, anyway. Always go for the low hanging fruit- makes it easier for everyone. There will inevitably be a few cases where bloggers are called out, but I suspect like the enforcement of illegal downloading, actual cases will be sporadic and the worst violators pursued rather than every kid who has ever downloaded a song or used a bit torrent site.

  • http://www.markblevis.com Mark

    Do the same rules of disclosure apply to newspapers, magazines and other publications that receive review books, music, movies, hotels, etc… While I from Canada, I can see how this could quickly become a divisive issue in that respect.

  • http://www.ldpodcast.com Whitney

    I’ve been reading more about what happens in the case of “real” journalism- it turns out most main stream media have strict rules about this- stuff that is sent to the paper can be used, tried, played with, etc. by the journalist(s) in question, but not kept, by the individuals. Since in most instances, bloggers are being paid by getting access to a product, that’s a payment of sorts, not subject in most cases to return- that’s advertising, not journalism.

    I think the point here is to delineate what is a sponsored communication- what is advertising,- when is a blogger part of an overall marketing campaign, versus journalism, where there is no direct relationship or exchange between the promoter and the blogger. Being sent product may make any review a sponsored communication where things should be disclosed.
    Journalists don’t get a free ride, but they are regulated by their own industry and their ethical guidelines, where up to now, bloggers and word of mouth marketing haven’t had this formal sense of disclosure. I think this is a good thing overall- bloggers are being held to a journalism-like standard- this is no longer a marginal industry, but a real one, and is being acknowledged as such.

  • http://yourbloghelper.com Kathy Purdy

    Thank you for answering my question. It was prompted by this comment and similar ones after, which seemed to think magazines were exempt because everyone knows they get their review products for free.

    In the FTC guidelines themselves, the first example refers to a movie review. It does not say that the review itself constitutes an endorsement (though I agree that wasn’t the point of the example), but that the excerpt of it in an advertisement does, because the public will perceive it as an endorsement. I haven’t read through the text of the revised guidelines myself, but the force of all the examples in the beginning seems to emphasize the public’s perception.

    It is interesting that everyone is reacting as if this only applies to bloggers. Could that be because some assume that since “everyone knows” (that is, it is commonly perceived by the public) that magazines receive free books for their reviews, disclosure is not necessary for them? You are the only person I have read so far that state these revisions will apply to all media, and I have a friend who works at a regional magazine, so I am particularly interested in this angle.

  • http://www.ldpodcast.com Whitney

    Hi Kathy!

    I did some more research into the mainstream media stuff, and it appears that most papers, magazines, etc. have fairly strict policies on reviewing stuff and the journalists don’t get to just keep the stuff they are sent, to keep the review from becoming a paid endorsement. There’s kind of a fine line here, but if journalists are personally profiting in kind or by dollars for reviews or endorsements, then they are in the same boats as bloggers and disclosure needs to be made.
    The whole point here is to keep the public from being misled by people who aren’t really using the products, who aren’t really comparing them to anything else, who are just being paid to say something positive (or negative, for that matter)- the rules covering traditional commercial and celebrity endorsements will have a bigger impact than those effecting bloggers to be honest.
    In the end, the rule for everyone should be that if you were sent something and didn’t pay for it yourself, you should disclose it. I trust the NYT and even Glamour and Vogue to have some principals about the matter- Consumer Reports has very strict guidelines about this stuff, for example. Here are some sample editorial guidelines I found through Google:

    http://www.childrenssoftware.com/editorialguidelines.html
    http://voices.washingtonpost.com/ombudsman-blog/2009/09/post_editor_ends_tweets_as_new.html
    http://voice.paly.net/edguides.php
    American Journalism Review article about blogs for journalists: http://www.ajr.org/article.asp?id=4522
    NYT article about mixing journalism and ethics and “new citizen journalists” http://www.nytimes.com/2008/06/08/weekinreview/08steinberg.html
    http://www.nytms-se.com/write-for-the-times/guidelines
    And this explains the differences and the fine line between editorial and advertising, and how it’s pretty difficult for many magazines to keep this straight.
    http://stylezeitgeist.com/forums/showthread.php?t=7615
    and I think this is the sort of stuff the FTC is really interested in.

    Sounds like I have enough for another post!

  • http://jimsmarketingblog.com Jim Connolly

    Hi Whitney,

    I just wanted to say; “Thank You” for such a detailed and intelligently written piece. I finally have a post to point people at, when they want to know how the FTC ruling impacts them.

    Excellent post!

  • http://www.ldpodcast.com Whitney

    Thanks Jim! Just make sure they read the comments as well- I think they clarify the professional journalism rules a bit better than the original, but hopefully that and the flow chartwill give people a sense of the flow of things. Let me know if you have any questions :)

  • Pingback: My Thoughts on the FTC Disclosure Rules and Bloggers » Become eVOLVE'd

  • http://blackhattitude.blackhattitude.org black hattitude

    Hi,

    Thank you for the great quality of your blog, every time i come here, i’m amazed.

    [url=http://black-hattitude.black-hattitude-black-hattitude.com]black hattitude[/url].

  • Pingback: Journalism, Citizen Journalism, Free Speech and the FTC | Reading Whitney

  • Pingback: Will New FTC Rules Force Christian Reviewers to Finally ‘Fess Up? | deCOMPOSE

  • Pingback: Encuentro de la Blogosfera dentro de BlogWorldExpo

  • Pingback: TMA WebSolutions Blog! » Blog Archive » Encuentro de la Blogosfera dentro de BlogWorldExpo

  • http://aveco-service.be Bockereyer

    How about non-US affiliates promoting US products?

  • http://aveco-service.be Bockereyer

    How about people living outside the US promoting US products?

  • http://www.ldpodcast.com Whitney

    This is a question that I think is very much up in the air.
    What’s clear is that there’s liability both on the advertiser and on the “broadcaster”/blogger side of the message. This means if it’s a US Company or US Product, they need to make sure they instruct their blogging partners to follow the disclosure guidelines, otherwise, they face potential fines. Whether or not the FTC has jurisdiction to impose fines across borders depends a lot on whether foreign governments honor that legal action reciprocally- questions of international law, which is not really my area of expertise, to be honest.
    What it all boils down to is that being honest and erring on the side of disclosure hurts no one and helps everyone. We may end up seeing the more “spammy” and hyperbolic advertising of instant weight loss and the like go off-shore for protection, but in the end, doesn’t truth in advertising help everyone? Have a great product, tell the truth about it, do well in the marketplace. Have a mediocre product, do okay in the marketplace. Seems pretty fair and equitable to me.
    And for those in Canada and overseas, I still think this is a good policy, regardless if it’s a US product or not. For those dealing with US products or services, even if you can be “over the top” because you are not necessarily affected by the FTC guidelines, the companies you deal with still are, and are liable for what you do, so i think it places you in a situation where compliance just makes sense to continue your own business interests.

  • http://aveco-service.be Bockereyer

    “Be honest”, I fully agree.
    Considering the Internet is a worldwide phenomenon this regulation should be the same worldwide. This said, people should have to learn to never rely on one single opinion. Doing a little research let’s you easily separate the husk from the corn as we say.

  • http://www.ldpodcast.com Whitney

    I agree that people should do research, but let’s face it- all of us are a bit lazy from time to time, and optimistic that people should tell the truth, the soap will smell great, the shampoo will make my hair bouncier than a trampoline, and I can lose 50 pounds on one month without amputation or childbirth. It is and always will be a “caveat emptor”- let the buyer beware – world, but that doesn’t mean the Government shouldn’t at least try to keep egregious fraud at bay.

  • http://www.red-enterprises.com David R

    Whitney,
    What would need to be done for my clients who use testimonials on their websites (of past or current clients) on a “testimonials” or “case studies” page or even on a sidebar?
    I know most of my clients (and even myself) will just ask their clients for their feedback and then post some or all of their comments on their site. I’ve even had someone send me an email (unsolicited) that included their praise and comments that I’ve taken and posted on my site (my clients have had this as well). Would we just need to “footnote” that these comments were either unsolicited or were requested for purposes of promoting products/services but that the commentors received no compensation, products, etc?
    Thanks.

  • http://www.ldpodcast.com Whitney

    Hi David!

    I would encourage you to read the guidelines themselves, http://www.ftc.gov/os/fedreg/2009/index.shtm, especially Section 255.2 regarding endorsements and examples. I pasted it below for you, but the examples given in the Guidelines will help you better understand different scenarios. You can certainly use endorsements, but they have to be real, by people actually using the product of service, and represent typical, not atypical results. So I might consider placing a page on a site that says “Hear from our customers” and note underneath- “These are unpaid, unsolicited letters, comments etc. from our customers- If you’ve used our product, let us hear from you and we’ll post your comment here!” That both groups the comments together as all unsolicited, and invites future comments as well- a win-win.
    I think the goal of the FTC is to corral hyperbolic and inflated claims, and make sure consumers understand what typical versus atypical results are (think diet commercials…) and again, all of this goes into play on 12/1/09. If you are using a testimonial page, I would add language to that just as a matter of course.
    The examples the FTC gives are pretty straight forward and should provide you with the guidance you need based on your individual case and facts. The law is pesky in that the full set of facts needs to be looked at, in context, to determine what complies and what may not.
    I hope that helps- let me know if I confused rather than clarified this for you.

    § 255.2 Consumer endorsements. (a) An advertisement employing endorsements by one or more consumers about the performance of an advertised product or service will be interpreted as representing that the product or service is effective for the purpose depicted in the advertisement. Therefore, the advertiser must possess and rely upon adequate substantiation, including, when appropriate, competent and reliable scientific evidence, to support such claims made through endorsements in the same manner the advertiser would be required to do if it i.e., without using endorsements.Consumer endorsements themselves are not competent and reliable scientific evidence.
    (b) An advertisement containing an endorsement relating the experience of one or more consumers on a central or key attribute of the product or service also will likely be interpreted as representing that the endorser’s experience is representative of what consumers will generally achieve with the advertised product or service in actual, albeit variable, conditions of use.
    Therefore, an advertiser should possess and rely upon adequate substantiation for this representation. If the advertiser does not have substantiation that the endorser’s experience is representative of what consumers will generally achieve, the advertisement should clearly and conspicuously disclose the generally expected performance in the depicted circumstances, and the advertiser must possess and rely on adequate substantiation for that representation.
    (c) Advertisements presenting endorsements by what are represented, directly or by implication, to be ‘‘actual consumers’’ should utilize actual consumers in both the audio and video, or clearly and conspicuously disclose that the persons in such advertisements are not actual consumers of the advertised product.

  • http://www.red-enterprises.com David R

    Thanks Whitney. I had read thru the guidelines, but sometimes it just takes another perspective to give you that “ah-ha!”.

    Of course, I just found out that one of my clients has been driving traffic to their site by offering a chance to get prizes (via a free drawing) if they go to the site and post a comment or testimonial about a business or article.

    Not everyone who posts a comment gets a prize (since its a drawing) but it still poses a problem in that the person who DOES win DID get compensation.

    Sigh… thanks again for the perspective!

  • Pingback: Encuentro de la Blogosfera dentro de BlogWorldExpo | GrupoHidalgo.com

  • Pingback: Encuentro de la Blogosfera dentro de BlogWorldExpo | SinapsysMx.Net

  • Pingback: Canadian Podcast Buffet » 148: Rick and Dude in a pub

  • Pingback: Web 2.0 Expo – Day 3 | Down Home Country Coding With Scott Selikoff and Jeanne Boyarsky

  • tonybuy

    I Found a Good Link Exchange Website that only 1 USD you can add 1 home page and 5 deeplinks with different title.
    and Paypal acceptable instant online.1 USD Bid Link,Business Directory,Bid Directory,Deep Link Bid Directory.

    http://www.1usdbidlink.net
    http://www.1usdbidlink.com/

    also http://www.media-packs.com is a good link exchange source,if you want to link exchange pls consider this site PR3 and 24hours link exchange promiss.

  • Rosalinda Vargas

    Thank you.

  • whitneyhoffman

    NO problem- let me know if I can help- sometimes it can be confusing, but if you err on the side of caution, everything should be fine :)

  • confused…a little

    Question: If a stationery company wants me to place a banner ad on my site, I will have to disclose they are paid advertisers, correct?

  • whitneyhoffman

    Banner ads are pretty much acknowledged as sponsors, but I might add a page listing your sponsors to be 100% safe- or at least a link in the side bar saying something like “Our Sponsors” that people can see if hey're interested. The rules really apply to sponsored posts, and people giving reviews for products or services they may have received for free, but this is not obvious to the average reader. For example, i recently received some samples from Stretch Island. I wrote a post about getting fruit into my kid's diet, scheduled for the GNM Parents Blog I write for, and specifically mentioned how Stretch Island got in contact with me, and how the samples encouraged my kids to try something new, and they liked it, making it now a more regular part of my purchasing. It's a review, and it's helpful, and it discloses any potential influence all at once. That way, the “gift” is disclosed and while it's hardly a real sponsored post, it discloses any conflict.

    I hope that makes sense. If you have any more questions, please feel free to email me at ldpodcast(at) gmail.com or call me- happy to help and clarify where I can.

  • Elaine

    In regards to Implications for Twitter… how does this work for tweets about advertisers that are not paying you specifically for that tweet? For example an advertisers pays for a banner ad on your site…. Can you tweet about this client in general even if you are not specifically addressing that person's goods and service? Let's say you found an interesting article on their blog for a recipe, for example… could you tweet the link to the recipe? It's totally unrelated to their ad, but does a pre-existing relationship count as an endorsement??

  • whitneyhoffman

    I might add a disclaimer if you feel you are gaining from the tweet in any way- through driving traffic their way, etc. I would just say something like this: “I love Noodlemeister's great new sausage noodles! (bitly link to their site) (client)” Bi indicating their a client, you're covered. too much disclosure is better than none and getting in trouble.

  • Pingback: Why is it important to disclose your an affiliate relationship?

  • Jo

    Hi Whitney, thanks for this information! Maybe you can help or point me in the right direction…I am planning a blog which will contain interviews on a weekly basis and as I am not paying the interviewees, I would like to offer them embedded links in the articles or formatted ads alongside the content as compensation. How would you recommend I disclose this information? Further down the line, when I can pay interviewees, I would like to offer paid advertising to anyone who is related to the interviews (e.g. a story on sailing may show an ad for the interiewee’s site as well as sailing clubs, sailing courses, tour operators who offer sailing trips, etc). What do you think my obligations would be in this case? Are these laws international, or just for sites based in the US? I am writing from Australia. Given that the internet is global, are there a set of international laws or are we all governed by the rules of the particular country we live in? Cheers!

  • Anonymous

    Hi Jo!

    The law does apply to the US, but disclosure is simply good practice.

    As for offering a quid pro quo for interviewees, are you sure this is necessary? Over at the LD Podcast (granted, a different industry all together than yours) I found I could call up people and ask for interviews for the podcast, offering links to their books and websites, and that was plenty. They were happy to have additional free publicity without having to give too much away in exchange. The links to their site are pretty straight forward – the only time you would need to disclose something is if you took something of value in exchange.

    For example, there’s an opportunity I have this weekend to attend a movie “sneak peek” for free, where they are hoping I will blog or tweet about the movie in exchange for the opportunity to see the show for free with my kids in advance of the release. I feel okay about this since we were thinking of seeing the movie based on a preview anyway, and I would probably consider writing about it regardless.
    However, when I write a post afterwards about the movie, or tweet about it, I will need to say something like “I got this opportunity to see X movie for free from Y Studio, in the hopes I would write a review about it. My kids and I went to the X showing at Z theater, and this was our experience.”

    The disclosures are all about letting the general public know what you are getting (or giving) in exchange for PR, marketing, etc. They deserve to know where people have vested financial interests. So If I start putting paid adverts on my blog, you know that I am getting some money from these companies, but if I write about them in the content, I should mention that we have a financial relationship, just to be clear, and so people can calculate that into their “credibility decision.”

    This is why I think providing free ads to interviewees seems like it might actually hurt your credibility rather than help it. It looks like you are just working as their PR firm, and not really just a passionate enthusiast. The links and everything are fine- that’s just giving credit where credit is due, like a handshake, but I think the ads place you in a more precarious position and one you probably don’t need to do. (You can probably, if the site grows, make money off that space from the same people if your site traffic is good, so why give away the store?)

    Make sense?

  • James Franklin

    New Federal Trade Commission guidelines regarding the use of customer testimonials and endorsements in advertising will start tomorrow (December 1, 2009).

    No longer will a mere statement like “results not typical” be acceptable in communicating to consumers that some endorsements may not reflect typical results for most users or customers. With the new rules, the advertiser will have to clearly describe what results should reasonably be expected by the average purchaser.

    There are other changes in the guidelines, too, for bloggers and celebrity endorsers.

    penny auctions,
    colon cleansing ,
    colon cleanser,
    electronic cigarette ,
    electric cigarette ,
    electronic cigarette review,
    electric cigarettes

  • Anonymous
  • Jason J

    I have the same opinion that electronic cigarette is the best replacement for normal cigarette

  • http://www.i-christianlouboutins.com/ Christian Louboutin

    Just my luck. I just discovered your blog and was hoping to steal (make that borrow, no, be inspired by) your material for my EnviroPolitics Blog

  • http://www.i-christianlouboutinss.com/ Sdfddsg

    Actually, we have opted for the always great articles on these pages to thank. Not all topics could share with you but the timeliness of the reports here makes it worth time and again to experience here to read and comment. For us, just the electricity and Gas and Energy topics of interest. Keep it up! Greetings from Germany

  • Fdsfgs

    e implications for advertising through blogger outreach programs has a new level of seriousness,
    sale

  • http://pulse.yahoo.com/_DZ7XM5PADO4ZOCTNH6EMKMOCF4 Emma Burton

    Good woork..monumente funerare

  • http://twitter.com/desep18 desep18

    Resources like the one you mentioned here will be very useful to me! I will post a link to this page on my blog. I am sure my visitors will find that very useful.

  • http://profiles.google.com/mattpowell157 Matt Powell

    Hey, Great post **

    ??????

  • JonsonKidy

    hey buddy nice post
    careprost | tadacip|

  • http://pulse.yahoo.com/_RG5477THECCTN4BJ77RK6JLFNE John Graham

    Great loved it, will be waiting for your future posts
     Generic Trental
    Generic Vasodilan

  • http://www.2medicure.com/ Jennifer Aniston

    Great post Absolutely
    fantastic Lots
    of useful information and inspiration ,

    keep posting.

  • Tony Mkrt

    I always enjoy reading your articles :)

    electronic cig | buy water filters

    Keep up the excellent work…

  • http://www.bellspharmacy.com Generic Viagra

    Great info you shared, thanks

  • Pingback: Best Online Marketplace

  • Pingback: The New Rules About Blogging for Money

  • mony1
  • mony1
  • mony1