FTC Blogger Endorsement Disclosures: A How-to Guide

If you read blogs, you’ve probably stumbled across the recent hullabaloo concerning the new advertising disclosure guidelines (pdf) released by the Federal Trade Commission. Typical coverage has been: ZOMG FTC is fining bloggers! Eat Me Daily asked David Barzelay, a lawyer and food-blogging proprietor of EatFoo.com, to dissect the new FTC regulations and break down what they actually mean for both us and you.

ftc-logoIf you’re a blogger, the bad news is that the FTC doesn’t respect you. It thinks you're less trustworthy and reliable than traditional media such as newspapers and magazines. But the good news is that the FTC doesn’t respect you enough to fine you.

In short: the technology we’re using these days (blogs, Twitter, the personal computer…) didn’t exist when the FTC's previous guidelines on freebie disclosure were released, and the new ones serve to clarify how the rules (which have not actually changed) might be carried out by the FTC in a variety of new contexts, such as sponsored blog posts or tweets. In the end, all you should take away from the new guidelines are some helpful tips on how to avoid executing the first of a long series of truly stupid acts that would be required to be actually in danger of being fined by the FTC.

When You Do Need Disclosures

The basic idea of the guidelines is this: if you are posting sponsored endorsements and your readers don’t know that your reviews are sponsored, you ought to be disclosing the fact of your compensation. The question of what constitutes a sponsored endorsement does not yet have a satisfying nor a precise answer. Whether a post is an “endorsement,” and whether that endorsement is “sponsored” depend on nebulous factors: the value of items received, whether there is a contractual relationship between you and an advertiser, whether it is generally known that you are willing to accept free items or pay in exchange for reviews, etc. The compensation can be any material benefit, including free food or meals—you can’t eat all the evidence. And the mere fact that you are allowed to give a free product a bad review or no review at all is not enough to keep your endorsement from being sponsored.

And When You Don't

On the other hand, if the freebies go to your employer and you merely borrow the freebies briefly in order to review them, it’s less likely that the FTC would consider your review to be a sponsored endorsement. The less direct the benefit, the more trustworthy the review, in the opinion of the FTC. In practice, the FTC will mainly target online payola systems, or “network marketing,” such as payperpost.com, where a single advertiser is in the business of paying lots of people to get them talking online.

Despite that, the best practice for bloggers remains to disclose any material gain that people might feel affects the credibility of your review. So, if you have a relationship with an advertiser that some might consider as impacting the credibility of your reviews (even if you don’t believe it affects your reviews), you should tell your readers about the benefit you received. That’s it. If you got free stuff or got paid, disclose it. Not only will it keep you within the law, it’ll also give you more long-term credibility among your readers.

How To Make Disclosures

If you think you might need to make any disclosures on your posts, you should do so on the specific posts themselves that are the sponsored endorsements (not a catch-all "FYI, I take free stuff" page that's never updated), but you needn’t go into detail. Just tell it in very brief, plain language: “free review cheese wheel received from Moon Cheese Company, Intl. In fact, I'd guess that some sort of internet slang or abbreviation will probably develop soon enough, — think “RFS” (reviewed free sample) as shorthand for these disclosures, or something to that effect. If most readers would know what that meant, such an abbreviation would probably be sufficient disclosure on a post. It’s the new YMMV!

The Negligible Consequences Of Failure To Disclose

Even if you fail to make the appropriate disclosures, it’s important to recognize that your risk of fines is quite low. For one thing, the FTC doesn’t actually have the authority to impose fines for this sort of regulation. It must seek court orders to enforce the regulations, and the courts can impose fines if they choose, but that would take a long string of very preventable and unfortunate events. The worst-case scenario in which you actually get fined would probably require you to refuse to comply with a cease and desist letter from the FTC, then later disobey a court order to remove the offending posts. In other words, fines will likely be quite easy to avoid, even if you don’t start making the called-for disclosures. And just in case you still need reassurance, officials from the FTC have now said repeatedly that the FTC will not ever be going after bloggers.

David Barzelay

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Comment Feed

  1. Lillian

    This is the clearest explanation of these ridiculous guidelines I've read. Thank you.

  2. The thing that struck me when I read the official release statement about the guidelines change is that no law has actually changed.

    These guidelines are just the FTC attempting to help marketers be able to comply with the law.

    A lot of the new guidelines are common sense. If you are getting paid to review something you should disclose it, because it is the right thing to do. If you do the right thing often enough you become credible.

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