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.
Bradley Finnearty says
This is good stuff to know. The feds are getting more serious about this kind of thing.
Maria Fontaine says
Thanks for the info and insight!!
Thanks for this.. I read something about it but never followed up.
It’s about time!! The FFC is very quiet about the Internet (and congress is even more quiet). I hope this helps regulate (and control) some misuse on the ‘net.
Thank you, Mark. If I ever become an affiliate marketer, I will know what I need to disclose. Great article!
Very helpful information! Thank you so much!
Yvonne Brown says
Very informative! I am working towards earning a certificate in IP so I find your incite very beneficial! Thanks!
Great info. You don’t want to get on the bad side of the Feds 🙂
Julie Wilson says
Great message. Stay on their good side
FTC rules have always been in place. I am not sure why some bloggers still think they do not have to do a disclosure. I have been blogging 9 years and always had to have a disclosure. Thank you for the update.
Thanks for the information! Will need to revamp some of my posts..
Dov Shapira says
This info is music to my ears.
You have to know what you’re saying, I mean really know
Good to know!
Steve Didier says
Great information – as an affiliate marketer, I was really unclear as to what the new guidelines are. Thanks for posting!
Thank you!! One of the reasons why I haven’t included my affiliate programs into my blog yet….All programs I am affiliate for are things I refer to either way, but I still don’t want to get in trouble 😉
This is great to know, for future reference. Thank you 🙂
Thank you for all of the great information, most of which I was unaware.
Daniele Holmberg says
Do you need a disclosure when writing abut restaurants if you were invited to sample the food? How would anyone know you were invited?
Good to know!
Felecia Armstrong says
Good information thank you.
Good stuff to know. They’re always changing these things, thanks for making it so easy to understand for us 🙂
Thank you so much for sharing the FTC guidelines!
I review books for a couple of publishers and make sure my FTC disclosure is included in every review.
Jason Valasek says
This great info and is worth to share. I agree to the Disclosures of the Ad. It must be clearly stated within the post.
There has been so much confusion and uproar about these new guidelines; thanks for making it simple and concise.
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