FTC Clarifies Its Blogger And Affiliate Endorsement Guidelines...AGAIN!

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There was a recent article at The Citizen's Media Law Center on this here:
FTC Seeks to Clarify -- and Justify -- Its Blogger Endorsement Guidelines | Citizen Media Law Project

The FTC FactSheet is here:
The FTC’s Revised Endorsement Guides: What People are Asking

Some interesting highlights:

Q: Isn't it common knowledge that some bloggers are paid to tout products or that if you click a link on my site to buy a product, I'll get a commission for that sale?

FTC: First, many bloggers who mention products don't receive anything for their reviews and don't get a commission if readers click on a link to buy a product. Second, the financial arrangements between some bloggers and advertisers may be apparent to industry insiders, but not to everyone else who reads a blog. Under the law, an act or practice is deceptive if it misleads "a significant minority" of consumers. So even if some readers are aware of these deals, many readers aren't. That's why disclosure is important.

Q: Has the FTC been getting complaints about deceptive blogs?

FTC: No. As it happens, many bloggers and advertisers already are disclosing their ties to each other. Industry associations and self-regulatory groups advocate disclosure, too.

Q: I've read that bloggers who don't comply with the Guides can be fined $11,000? Is that true?

FTC: No. The press reports that said that were wrong. There is no fine for not complying with an FTC guide.

Q: Are you monitoring bloggers?

FTC: We're not monitoring bloggers and we have no plans to. If concerns about possible violations of the FTC Act come to our attention, we'll evaluate them case by case. If law enforcement becomes necessary, our focus will be advertisers, not endorsers - just as it's always been.

Q: Do the Guides hold online reviewers to a higher standard than reviewers for paper-and-ink publications?

FTC: No. The Guides apply across the board. The issue is - and always has been - whether the audience understands the reviewer's relationship to the company whose products are being reviewed. If the audience gets the relationship, a disclosure isn't needed. For a review in a newspaper, on TV, or on a website with similar content, it's usually clear to the audience that the reviewer didn't buy the product being reviewed. It's the reviewer's job to write his or her opinion and no one thinks they bought the product - for example, a book or movie ticket - themselves. But on a personal blog, a social networking page, or in similar media, the reader may not expect the reviewer to have a relationship with the company whose products are mentioned. Disclosure of that relationship helps readers decide how much weight to give the review.

Q: Don't these guides violate my First Amendment rights?

FTC: If you are acting on behalf of an advertiser, what you are saying is commercial speech - and commercial speech can be regulated under the FTC Act if it's deceptive.

Regarding Disclosures:

Q: How should I make the disclosure?

Is there special language I have to use to make the disclosure?

FTC: No. The point is to give readers the information. Your disclosure could be as simple as "Company X gave me this product to try . . .."

Q: Do I have to hire a lawyer to help me write a disclosure?

FTC: No. What matters is effective communication, not legalese. A disclosure like "Company X sent me [name of product] to try, and I think it's great" gives your readers the information they need. Or, at the start of a short video, you might say, "Some of the products I'm going to use in this video were sent to me by their manufacturers." That gives the necessary heads-up to your viewers.

Q: Would a single disclosure on my home page that "many of the products I discuss on this site are provided to me free by their manufacturer" be enough?

FTC: A single disclosure doesn't really do it because people visiting your site might read individual reviews or watch individual videos without seeing the disclosure on your home page.

Q: Would a button that says DISCLOSURE, LEGAL, or something like that be sufficient disclosure?

FTC: No. A button isn't likely to be sufficient. How often do you click on those buttons when you visit someone else's site? If you provide the information as part of your message, your audience is less likely to miss it.

Q: What about a platform like Twitter? How can I make a disclosure when my message is limited to 140 characters?

FTC: The FTC isn't mandating the specific wording of disclosures. However, the same general principle - that people have the information they need to evaluate sponsored statements - applies across the board, regardless of the advertising medium. A hashtag like "#paid ad" uses only 8 characters. Shorter hashtags - like "#paid" and "#ad" - also might be effective.
#blogger #clarifies #endorsement #ftc #guidelines
  • Profile picture of the author Broyde
    The question asked is "Do the Guides hold online reviewers to a higher standard than reviewers for paper-and-ink publications?"

    What I want to know is why are online people fearful or concerned about this. Why would online reviewers be subject to a different standard. If it were so the FTC would be losing law suits everywhere for unfairness. They don't want that to happen.

    The only difference is that online reviewers may be from smaller companies than paper and ink reviewers. I don't think that the FTC is interested in fighting the internet and if they made extra stipulations that is exactly what they would be doing.

    Internet technology has not even yet started to change the world in the many ways that it can.
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    • Profile picture of the author brendan301
      this so called "clarification" really raises more questions for me. chief among them being, WTF is a "significant minority" and how is that determined?

      if someone pays to put a banner on your page do you have to put under the banner that you were paid to allow the banner to be there and that it if they click it and buy through that link that you might get paid????
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      • Profile picture of the author psresearch
        Originally Posted by brendan301 View Post

        this so called "clarification" really raises more questions for me. chief among them being, WTF is a "significant minority" and how is that determined?

        if someone pays to put a banner on your page do you have to put under the banner that you were paid to allow the banner to be there and that it if they click it and buy through that link that you might get paid????
        I asked the FTC a similar question about what they meant by "net impression" to consumers and this is the answer I got (bottom line - we'll never know):

        "Hi, Mr. Schlegel. You raise an interesting question about how the FTC determines the “net impression.” Because the FTC deals daily with the question of what’s deceptive, the Supreme Court has said that it has the expertise in most cases to make that determination: “As an administrative agency which deals continually with cases in the area, the Commission is often in a better position than are courts to determine when a practice is deceptive within the meaning of the Act. This Court has frequently stated that the Commission's judgment is to be given great weight by reviewing courts. This admonition is especially true with respect to allegedly deceptive advertising since the finding of a violation in this field rests so heavily on inference and pragmatic judgment.”


        Sometimes the process depends on whether it’s an express claim or a subtler implied claim. Here’s how the United States Court of Appeals described the process in Kraft v. FTC: “In determining what claims are conveyed by a challenged advertisement, the Commission relies on two sources of information: its own viewing of the ad and extrinsic evidence. Its practice is to view the ad first and, if it is unable on its own to determine with confidence what claims are conveyed in a challenged ad, to turn to extrinsic evidence. The most convincing extrinsic evidence is a survey of what consumers thought upon reading the advertisement in question, but the Commission also relies on other forms of extrinsic evidence including consumer testimony, expert opinion, and copy tests of ads.”


        One of the best summaries of what makes an advertising claim deceptive us the FTC’s long-standing Deception Policy Statement: http://www.ftc.gov/bcp/policystmt/ad-decept.htm"
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      • Profile picture of the author bretski
        Originally Posted by brendan301 View Post

        this so called "clarification" really raises more questions for me. chief among them being, WTF is a "significant minority" and how is that determined?

        if someone pays to put a banner on your page do you have to put under the banner that you were paid to allow the banner to be there and that it if they click it and buy through that link that you might get paid????

        Good point and very valid. Where's the line? How much disclosure is enough and when is it necessary?
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        • Profile picture of the author psresearch
          Originally Posted by bretski View Post

          Good point and very valid. Where's the line? How much disclosure is enough and when is it necessary?
          I thought this was interesting:

          Q: Would a button that says DISCLOSURE, LEGAL, or something like that be sufficient disclosure?

          FTC: No. A button isn't likely to be sufficient. How often do you click on those buttons when you visit someone else's site? If you provide the information as part of your message, your audience is less likely to miss it.

          Because that's what a lot of sites are actually doing - and what some attorneys are selling.
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        • Profile picture of the author Amitywill
          Q: I’ve read that bloggers who don’t comply with the Guides can be fined $11,000? Is that true?

          FTC: No. The press reports that said that were wrong. There is no fine for not complying with an FTC guide.

          Q: Are you monitoring bloggers?

          FTC: We’re not monitoring bloggers and we have no plans to. If concerns about possible violations of the FTC Act come to our attention, we’ll evaluate them case by case. If law enforcement becomes necessary, our focus will be advertisers, not endorsers – just as it’s always been.


          They're not even going after bloggers. They're going after advertisers
          which I assume means the product owners.

          Therefore telling us to put a disclosure line is only a recommendation
          not a requirement.

          So until they start making enforcements on bloggers I wouldn't
          worry about putting disclosures under banners or on reviews etc.

          If they're not enforcing it then what's the point?
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      • Profile picture of the author tryinhere
        Originally Posted by brendan301 View Post

        this so called "clarification" really raises more questions for me. chief among them being, WTF is a "significant minority" and how is that determined?

        if someone pays to put a banner on your page do you have to put under the banner that you were paid to allow the banner to be there and that it if they click it and buy through that link that you might get paid????
        my understanding and i am not a legal legal is no you do not need to declare this due to the banner clearly being a separate ad, as an ad and as such it is deemed to be a commercial identity that people understand to be one of making a sale and or money being involved.

        I asked this question in relation to adwords and that i do a lot of affiliate marketing through that system and how it would be possible for me to add a disclosure to my my adwords text ad as there was no area for this to be added.

        the answer above was basically what i understand it to be, again i am not a legal legal, but it would make sense to me that an advertisement is of commercial intent and as such would not need a disclosure, if it did every ad would need to carry a signage saying this ad makes money ? a bit silly when that is what an ad is for in most cases anyway / excluding non profit etc?

        may be wrong on it but if so a lot of ads all need updating across every major site on the net and offline media, TV print radio even ????
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  • It's simple, people. Really, come now. Instead of looking for ways to bury your disclosure, just put it out there.
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  • Profile picture of the author Gail Sober
    Q: Would a button that says DISCLOSURE, LEGAL, or something like that be sufficient disclosure?

    FTC: No. A button isn’t likely to be sufficient. How often do you click on those buttons when you visit someone else’s site? If you provide the information as part of your message, your audience is less likely to miss it.
    The little link or button seems to satisfy for Terms of service, EULA's, privacy policies, etc.. Not sure why this would be any different.
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  • Profile picture of the author J Bold
    Once again, the sky doesn't quite seem to be falling with this further clarification, does it?
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    • Originally Posted by redicelander View Post

      Once again, the sky doesn't quite seem to be falling with this further clarification, does it?
      The clarification makes it even less burdensome than the Chicken Littles had originally clucked about.
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      • Profile picture of the author psresearch
        Originally Posted by Steven Carl Kelly View Post

        The clarification makes it even less burdensome than the Chicken Littles had originally clucked about.
        Agreed. And usually the FTC looks at extrinsic evidence (e.g. complaint history) and according to them:

        "Q: Has the FTC been getting complaints about deceptive blogs?

        FTC: No. As it happens, many bloggers and advertisers already are disclosing their ties to each other. Industry associations and self-regulatory groups advocate disclosure, too."

        The only real takeaway from their answer is the "No" - I think the rest of their answer is a bit suspect as being based on facts.
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  • Profile picture of the author charlieboy61
    Sometimes its ethics or money. I think money wins most of the time
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  • Profile picture of the author vip-ip
    Most bloggers, I think, will follow the "if it ain't illegal, imma do it" mentality - with the select few being ethical enough to take up on FTC's advise.

    Best Regards,
    vip-ip ...
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    • Profile picture of the author Paul Myers
      Tim,
      LOL at the FTC saying, "What matters is effective communication, not legalese" when their own guidelines on the issue are so poorly explained by them that they're hard to follow...
      The problem people seem to have is that the line is fuzzy. That is a necessary function of regulating based on consumer impressions, and the basis for the "reasonable person" test.

      Copywriters would love clear definitions, because that would give them something to quibble over and develop work-arounds for. In this regard, it's much like moderating a forum. Some things are very clear, while others are a function of judgement.

      As far as the comment about the merchant being the target... some people should be glad this isn't a broad-ranging investigation. If you include an affiliate link in a review, YOU are the advertiser.

      Whether in this realm or others, trying to game the system by interpreting regulations without context, and thinking you're going to outsmart the people legally empowered to enforce them, is a dangerous play.


      Paul
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      • Profile picture of the author TimGross
        Originally Posted by Paul Myers View Post

        The problem people seem to have is that the line is fuzzy. That is a necessary function of regulating based on consumer impressions, and the basis for the "reasonable person" test.

        Copywriters would love clear definitions, because that would give them something to quibble over and develop work-arounds for. In this regard, it's much like moderating a forum. Some things are very clear, while others are a function of judgement.
        Yeah, I completely agree with the above... And on a simplistic basis, there are "good guys" and "bad guys", and anyone who is concerned about being in compliance with the new FTC guidelines is already leaning towards the "good guy" column anyway. (Not that that means everyone here shouldn't be concerned about being compliant. )
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