Monday, September 6, 2010

Time To Revisit The Federal Trade Commission's Updated Guidelines For Product Endorsements: Bloggers (Including Micro-Bloggers) Beware

Over the past month or so, I’ve been asked by three bloggers whether they’re subject to the “new” FTC guidelines (released in 2009) concerning product and service endorsements. Each of those bloggers do – from time to time – accept “freebies” (either free products or services) in exchange for writing about those products/services on their respective blogs. I too receive those offers, but have yet to accept.

Given those recent inquiries, and the potential for bloggers to land in the crosshairs of an FTC false and deceptive advertising claim, I thought it was time to re-visit this issue and remind bloggers of the FTC guidelines regarding advertising and product/service endorsements.

Last year the FTC updated its Use of Endorsements and Testimonials in Advertising Guidelines (the “Guidelines”). Those Guidelines now expressly include advertising and endorsements made through social media, including podcasts, social media networks and blogs. The Guidelines are not new. They have simply been updated to keep pace with technological changes in media.

If you’re a blogger that’s paid to endorse/promote certain products or services -– or you simply receive freebies in exchange for blogging about them -- then the Guidelines apply to you. The reason is simple. When there exists a connection between an endorser (i.e., a blogger) and the seller of the endorsed product/service that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.

Some of the things you need to know about the Guidelines are:

1. If there is a relationship between you and a product or service provider, i.e., you are being paid to give -- or you receive freebies in exchange for -- a blog review or endorsement (a “Relationship”), you must disclose that Relationship.

2. Blogger endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser.

3. Don’t make false claims or claims that cannot be substantiated as a “typical result.”

4. Blogger endorsements may not convey any express or implied representations that would be deceptive if made directly by the advertiser/product manufacturer.

5. Disclosure of a Relationship still applies to micro blogging via Twitter. Simply use the “#paid_ad” hash tag or something similar. It’s only 8 characters.

6. You can’t talk about your experience if you haven’t tried the endorsed product or service.

7. If you tried the product or service and didn’t think it was “great!” -- you can’t say you think it’s great! That’s simply deceptive advertising and in violation of advertising laws. Why deceive loyal followers?

8. Advertisers/product manufacturers are subject to liability for false or unsubstantiated statements made by blogger endorsers.

9. Failure of bloggers to disclose Relationships may result in the bloggers themselves becoming liable for deceptive advertising practices for statements made in the course of their endorsements.

10. Bloggers that make false or unsubstantiated claims about a product or service may be liable for deceptive advertising practices.

An example:

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 bloggers endorsements. 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.

The next time you receive a “tweet” that looks, smells and tastes like an endorsement, it probably is. And if so, that endorser should take notice of the FTC’s laws regulating advertising and endorsements.

For more information about the Guidelines, visit the FTC’s website.

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