Bloggers The FTC And Disclosure: The Sky Is Not Falling
The new FTC regulations are a great big yawn. There’s nothing particularly new since 1980 except that advertising is now online as well.
Rather than screaming that that sky is falling, why not read the guidelines here.
Here are a few highlights:
The Commission does not believe that all uses of new consumer-generated media to
discuss product attributes or consumer experiences should be deemed “endorsements” within the
meaning of the Guides. Rather, in analyzing statements made via these new media, the
fundamental question is whether, viewed objectively, the relationship between the advertiser and
the speaker is such that the speaker’s statement can be considered “sponsored” by the advertiser
and therefore an “advertising message.” In other words, in disseminating positive statements
about a product or service, is the speaker: (1) acting solely independently, in which case there is
no endorsement, or (2) acting on behalf of the advertiser or its agent, such that the speaker’s
statement is an “endorsement” that is part of an overall marketing campaign? The facts and
circumstances that will determine the answer to this question are extremely varied and cannot be
fully enumerated here, but would include: whether the speaker is compensated by the advertiser
or its agent; whether the product or service in question was provided for free by the advertiser;
the terms of any agreement; the length of the relationship; the previous receipt of products or
services from the same or similar advertisers, or the likelihood of future receipt of such products
or services; and the value of the items or services received. An advertiser’s lack of control over
the specific statement made via these new forms of consumer-generated media would not
automatically disqualify that statement from being deemed an “endorsement” within the
meaning of the Guides. Again, the issue is whether the consumer-generated statement can be
considered “sponsored.”
Thus, a consumer who purchases a product with his or her own money and praises it on a
personal blog or on an electronic message board will not be deemed to be providing an
endorsement.21 In contrast, postings by a blogger who is paid to speak about an advertiser’s
product will be covered by the Guides, regardless of whether the blogger is paid directly by the
marketer itself or by a third party on behalf of the marketer.
Well, that’s fantastically vague and simply reiterates what’s already in play with search engines and general public sentiment. Then we move on to:
Similarly, consumers who join word of mouth
marketing programs that periodically provide them products to review publicly (as opposed to
simply giving feedback to the advertiser) will also likely be viewed as giving sponsored
messages
And this is a good example of stuff that’s probably happening, but not with anyone I know, read or trust:
Example 5: A skin care products advertiser participates in a blog advertising service.
The service matches up advertisers with bloggers who will promote the advertiser’s
products on their personal blogs. The advertiser requests that a blogger try a new body
lotion and write a review of the product on her blog. Although the advertiser does not
make any specific claims about the lotion’s ability to cure skin conditions and the
blogger does not ask the advertiser whether there is substantiation for the claim, in her
review the blogger writes that the lotion cures eczema and recommends the product to
her blog readers who suffer from this condition. The advertiser is subject to liability for
misleading or unsubstantiated representations made through the blogger’s endorsement.
64
The blogger also is subject to liability for misleading or unsubstantiated representations
made in the course of her endorsement. The blogger is also liable if she fails to disclose
clearly and conspicuously that she is being paid for her services. [See § 255.5.]
In order to limit its potential liability, the advertiser should ensure that the advertising
service provides guidance and training to its bloggers concerning the need to ensure that
statements they make are truthful and substantiated. The advertiser should also monitor
bloggers who are being paid to promote its products and take steps necessary to halt the
continued publication of deceptive representations when they are discovered.
I’d like y’all to remember that I called WOMMA out as being a new breed of asshole some time ago. If you feel like you’re over-regulated do be sure and thank them.
My suggestion is to read the documents in it’s entirety on your own. You’re smart, you don’t need me to disseminate information for you, I will tell you this, I haven’t read a good analysis online or in MSM yet. That should terrify you. The big boys are reporting this with great inaccuracy and, naturally, the FTC will not be enforcing that.
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