FTC Publishes Final Guides Governing Endorsements, Testimonials

Under these new terms, that's not enough.

You have to actually say WHAT results buyers can expect. Good luck with that...

Even if you attempted to comply with the above rules I can imagine the FTC hauling you into court and battering you with multiple lawyers to put holes all through the "methodology" you used to arrive at your conclusions.

That's why it's all selective enforcement. It'll be easier for the FTC to go after people...it's all about revenue for the government.

One part of me feels that this is a good thing but another feels like its a way for the FTC to put undue pressure on small business not to mention larger businesses using the FTC as a proxy to drive down competition and I think the biggest problem will be selective enforcement.

I think we can all agree that the hidden continuity offers (you know which ones I'm talking about) should be exposed and dealt with but I wonder how large a net the FTC will cast and I really wonder if it will catch any big fish or will they swim out of large pre-cut holes.


Take a look at some of the tv, print, radio, and web advertisements/endorsements/commercials. A large percentage of commercials are endorsements, the majority of which use actors to portray an "average consumer". If those commercials are ok why can't someone do something similar on a blog?

I also have a problem with this statement from the FTC's press release...

The quote above mentions a consumer and his/her experience. Does this mean that I can hire an actor to talk about a "typical" consumer experience and it won't be flagged by the FTC?

And what is a result that consumers can generally expect? Say you're selling a nutrition program to help people lose weight and become more fit. It's composed of sensible eating guide lines and exercise recommendations.

The program is solid but will only work if people follow it. How can you, as a seller, know what people will act on and what they won't. All that you can do is provide good, useful information. You can't force someone not to eat that donut or drink that liter of soda yet those will be the people that say the program doesn't work.

Think about all the cereal commercials that say "part of a nutritious and balanced breakfast" eventhough the cereal is nothing more that colored sugar.

Like I said... I'm all for scammers getting their due but the fact that you can have two companies using the exact same methods and the FTC can selectively prosecute one and not the other is not s good thing and will lead to abuses in my opinion.

Kevin

I wonder if the FTC has any power or influence outside of the US? Also, if I have a blog with affiliate banners near the content, could that be considered an endorsement? If that is the case, then are we also responsible for 3rd party ads such as adsense and other advertisements we might have running on our site?

Personally, I think they are really going after the blatant abusers like flog owners and forced continuity scams. That was really getting out of hand anyway and needed to be dealt with.

This could be interesting...

Yes, I am sure it affects already existing sites as well as new sites, but like they say in the article, this will be pretty much impossible for them to monitor except for the big cases.

If you've been driving 65mph in a 65mph zone, but they decrease the speed limit to 55mph, you couldn't be punished for driving 65mph prior to the enactment (actually the effective date) of the lower speed limit, but you certainly would be punished for driving 65mph after the the law goes into effect.

Same analysis here. You will be OK up until Dec. 1, then anything on the internet will be fair game (obviously subject to jurisdictional and citizenship issues).

Yeah, you missed something...

It has very little to do with whether or not your testimonials are real. Fake testimonials are obviously deceptive and I'm sure has been against the rules for a long time.

What people are worried about with these new guidelines is that there are very unspecific clauses that suggest that testimonials, even if real, must portray "typical" results, or clearly state the difference between the testimonials and the typical results.

How and who determines what results are "typical"? Who knows. Will it actually be a big deal? Maybe not, but I'm just pointing out that fake testimonials aren't really the issue here

A short disclaimer at the bottom of your page will take care of this. No big deal.

Either way this seems like one of those laws they won't enforce.

Probably has more to do with Oprah, Obama, Dr.Oz, Rachel Ray, and all the other celebrities floggers used to promote CPA offers. Im sure its no coincidence this law came about right after all those marketers were rounded up by the AG.

Scan artists don't really care about following laws so they won't even blink at this. The assumption is that this rule change will solve all the ills of marketing. I doubt it very much. Honest marketers will jump through hoops to comply, but mostly it will give the government a big hammer to wallop anyone that makes a mistake.

The way its written there is going to have to be a lot of case law to narrow down what is acceptable and what is not. Lawyers love this.

Jason,

Have you read the full PDF doc?

Most people have just read that one page overview of the guidelines, but the PDF has some examples. (I have not had time to weed through it all yet.)

I only have a similar question that nobody has addressed: if you post a review on your blog for something that you actually purchased directly, and you include an affiliate link, you don't get compensated until AFTER a person has made a purchase through your link. So why would you need to call attention to that fact?

That would seem different than if you didn't purchase the product, or if one was given to you as a "review copy". (Er, how many supposed "reviews" of Clickbank products were done by people who even saw the product? Very few, I'd guess!)

This is a disconnect I simply do not understand about the IM community. We produce TONS of materials that tell people about every possible angle on how to make millions selling products as an affiliate, yet publically flog anybody who DARES to post affiliate links in discussion areas like this.

This forum even forbids affiliate links in sigs!

So evidently, it's fine to clutter up everybody ELSE'S blogs and forums with affiliate links, but you'd better not try polluting any IM blogs or forums with aff links, lest you'll get banned.

And yet, listen to the OUTCRY about having to DISCLOSE that you're USING AFFILIATE LINKS where you are not now doing it!

Sorry folks, but WE are the ones driving the AFFILIATE BANDWAGONS.

Nonetheless, there's a CLEAR sentiment that "affiliate links are BAD". Otherwise there wouldn't be such a strong pressure to avoid them in forums like this.

If they're not "good enough" for us to allow to be used in our own forums and blogs (by others), then why are we even having this discussion? THEY'RE OBVIOUSLY *BAD NEWS* and should be AVOIDED!

-David

Whats this got to do with anything?

They already have the power to shut someone down for using lies in their advertisements...

This is about being able to use real, truthful testimonials in your advertising. Now even if everything you have n your page is real and truthful you still cant use testimoials unless you can prove that everybody will get that result

Robert

I don't see this as an issue. If you have somebody promoting your "Affiliate Marketing" package and you find you're getting an abnormally high refund rate from that affiliate, and you go to their site and see that they're promoting it as an effective tool for "Membership Subscriber List Building", are you going to shrug that off and say, "Ah, well, that's an example of 'Freedom of Speech', and I have no control over that".

Besides, the example above doesn't state explicitly that there's any kind of financial arrangement between the manufacturer and the blogger. It states there's a service that "matches up advertisers with bloggers", so we're to infer that the blogger is earning something somehow, directly or indirectly, from the vendor. It leaves it to the reader to draw their own conclusions.

When it comes to AFFILIATES, well, that is an EXPLICIT financial arrangement, and you are darn well within your rights to tell them exactly what they can and cannot say in order to earn commissions.

If you think it's a problem "policing" these guys, then just be more selective on who you decide to allow being an affiliate for you!

I suspect this will have a far greater impact on outfits like Commission Junction and Clickbank than folks who have scripts that allow us to control access to our affiliate signup process, and who KNOW who's promoting our stuff and can easily contact them.

Look forward to new procedures where they require every "affiliate" to be approved directly by the vendor, so the vendor knows who they are and can decline to allow "serial liars" to become their affiliates.

And we're also likely to see increased use of "affiliate tools" pages that contain pre-written content and ads for affiliates to use, and even REQUIRE affiliates to use ONLY these materials.

The bloggers in question are not generally what we'd consider "affiliates". In general, bloggers have developed a reputation of being blunt, tell-it-like-it-is folks. The problem is, they're also "creative writers", and they feel like their writings are subject more to "artistic interpretation" and "First Amendment protection" than any need to be "honest and truthful" in the eyes of the FTC.

The FTC might have trouble getting around any First Amendment claims with these folks, but they can certainly have a big impact on vendors who, knowingly or unknowingly, allow bloggers to say stuff that they themselves are prohibited from saying.

I'd also like to point out that there are two different sets of laws that come into play in this respect: First Amendment court rulings historically draw distinctions between "private speech" and "commercial speech". If there's money involved, however indirect, the actions can be interpreted by the courts under the "commercial speech" provisions, which are not nearly as protective as the "private speech" provisions.

So this isn't the kind of "First Amendment" issue that many folks might think.

Ummm -- you can't "bring on" the revoking of constitutional rights. That's the whole point of the word, "rights."

-- TW

Are you aware that the FTC started developing these guidelines a couple of years ago under the BUSH administration, and have been relatively quiet about them since Obama was elected?

Why is it that people seem to think that the wheels in Government, and specifically in humonguous politically-driven and complex Government Agencies like the FTC, move at break-neck speed?

The FTC could not publish a simple memo with a mandatory series of public hearings and review deadlines in less time than Obama has been in office! Read the historical record.

Um... we've been talking about this HERE for months, and I've heard about it several times over the past couple years. Here's a discussion about it from May of this year, when I first showed up on the forum:

http://www.warriorforum.com/main-int...-solution.html

Here's another mention from April, which turned up in a simple search:

http://www.warriorforum.com/main-int...ord-mouth.html

Here's an official statement weeks after Obama was elected, but before he took office:

FTC Approves Federal Register Notice on Advertising Endorsements and Testimonials

Note in particular this sentence:

"In a Federal Register notice published in January 2007, the FTC sought public comment on the overall costs, benefits, and regulatory and economic impact of the Guides, which were last updated in 1980."

If you actually give a toss what the FTC regulations are and how they're changing, this is not and was never going to be a surprise.

These are spot on points.

First, if you look at the history of the FTC actions, the sway of the President and Congress only have an impact of whom they go after.

When Republicans are in power, the FTC goes after businesses that threaten big businesses interests. When Dems are in power, the FTC mainly becomes consumer oriented.

We can moan and groan about these rules all we want, but if we take a step back and be honest, they really do protect consumers. In reality, they weren't need though because it all falls under deceptive marketing and the FTC always has the ability to act in that area.

In my opinion, 90 percent of marketing today has elements designed to deceive consumers. It may testimonials that appear to be unbiased but are not. Perhaps it's a celebrity endorsement who is actually a hired gun. Or maybe it's a review site that appears to be journalism but is actually selling.

Let's stop trying to trick consumers into giving us their money and instead, let's lay out the facts and use our skills to convince them that what we have to offer is in their best interest.

It does not apply in that instance. Google is not endorsing your product, they are providing a paid advertising medium.

You actually make the point here as to why these rules were put in play.

First, the consumer doesn't pay Google, the business does. Google is the same as a newspaper or magazine.

But that being said, Everyone understands what an ad is. It is still unlawful to be deceptive in an ad, but the ad itself is understood to be a selling tool.

What these rules are addressing is elements of marketing that appear to be journalism but are actually advertising. There are two issues. One is whether or not the content is deceptive or misleading and the other is whether the delivery of the content itself is misleading.

Here is a better question. It is routine for magazines and publications to provide article space in exchange for ad dollars spent. These articles appear to be journalism but in reality they are just ads that appear to be journalism. This practice should fall under these new rules.

This really provides the FTC with a broad brush for attacking. We will see how they use it.