There has been a great deal of confusion among bloggers since the Federal Trade Commission (“FTC”) issued updated guidelines in March 2013 regarding if and when disclosures must be made in connection with online advertising (the “Guides”). This article will summarize some of the most important guidelines and how they may affect bloggers (the complete Guides are available here). This article does not constitute legal advice and is provided for informational purposes only.
One of the most common situations where a disclosure must be made is if a blogger participates in an affiliate marketing program and they post about products or services promoted by that program. Such posts constitute advertisements and the basic FTC rules of advertising apply: the post must be truthful and not misleading, claims made in the post must be substantiated, and the post cannot be unfair. To be “truthful and not misleading” a post about a product or service for which the blogger receives compensation, for example the product was provided for free or the blogger gets a discount for promoting the service, that relationship must be disclosed in the post. There is no set requirement on what language must appear in a disclosure, what’s important is that the information is clear to the consumer. It could be as simple as “XYZ, Inc. gave me this product to try out” or “I receive a discount on this service for posting about it.”
What to include in a disclosure gets more complicated when dealing with space constraints such as on Twitter. In such situations the FTC suggests that hash tags such as “#paid ad”, “#paid”, or even “#ad” may be effective disclosures. The following example from the Guides shows effective disclosures from a fictional movie star, Julie Starz, who is a paid endorser for a weight loss program:
In this instance two disclosures are required, that she is being paid by Fat-away and that her weight loss is not typical. Such disclosures would also be required on a social media channel with limited space such as Facebook status updates, sponsored Pinterest pins or photos posted on Instagram.
Disclosures must also be “clear and conspicuous.” According to the Guides that means the disclosure “should be placed as close as possible to the claim they qualify.” As an example, in a post reviewing a blender, if the blogger received the blender for free from the manufacturer in order to review it that fact should be disclosed early in the post, not at the end or via a link or button that takes the reader to another page where the disclosure is made.
It is important to remember that the Guides only apply to endorsements if the company providing the product or service, or someone working for that company, paid the blogger for the endorsement or gave them something of value. If a blogger reviewed a new camera in a post and they received the camera as a gift from a family member or friend, won it in a contest, or purchased it themselves then no disclosure is required.
This article addressed some of the main issues bloggers should be aware of in the Guides. Additional information is available in the Guides (especially in the examples at the end) and in a FAQ provided by the FTC (available here). Whether or not an FTC guideline applies to a particular activity is a highly fact specific question and bloggers should consult with an experienced e-commerce attorney if they want specific advice on their situation.