A reminder about the FTC rules
Yesterday, The Legal Genealogist set out in a footnote a point that really needs to be given a whole lot more emphasis than a single footnote can provide.
That’s the fact that “the Federal Trade Commission requires a ‘clear and conspicuous’ disclosure by any blogger who receives a product for free with the expectation that the blogger will write about it. I would disclose this anyway, but add this note as a reminder to all bloggers: we have legal and ethical responsibilities here, and a disclosure page to which we link on our websites doesn’t cut the mustard.”1
Now this isn’t anything new. It was back in 2009 that the FTC first decided to bring social media folks like us bloggers under the umbrella of its rules regarding advertising disclosures. Set out in a part of the Code of Federal Regulations — the rules of the road set by federal agencies2 — the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising tell us what we need to do when we might have a conflict of interest in posting something on our blogs.3
Why in the world, you might ask, would the FTC care what a blogger says in a blog?
Here’s the FTC’s answer to that:
Suppose you meet someone who tells you about a great new product. She tells you it performs wonderfully and offers fantastic new features that nobody else has. Would that recommendation factor into your decision to buy the product? Probably.
Now suppose the person works for the company that sells the product – or has been paid by the company to tout the product. Would you want to know that when you’re evaluating the endorser’s glowing recommendation? You bet. That common-sense premise is at the heart of the Federal Trade Commission’s (FTC) Endorsement Guides.
The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading. An endorsement must reflect the honest opinion of the endorser and can’t be used to make a claim that the product’s marketer couldn’t legally make.
In addition, the Guides say if there’s a connection between an endorser and the marketer that consumers would not expect and it would affect how consumers evaluate the endorsement, that connection should be disclosed. For example, if an ad features an endorser who’s a relative or employee of the marketer, the ad is misleading unless the connection is made clear. The same is usually true if the endorser has been paid or given something of value to tout the product. The reason is obvious: Knowing about the connection is important information for anyone evaluating the endorsement.
Say you’re planning a vacation. You do some research and find a glowing review on someone’s blog that a particular resort is the most luxurious place he has ever stayed. If you knew the hotel had paid the blogger hundreds of dollars to say great things about it or that the blogger had stayed there for several days for free, it could affect how much weight you’d give the blogger’s endorsement. The blogger should, therefore, let his readers know about that relationship.
Another principle in the Guides applies to ads that feature endorsements from people who achieved exceptional, or even above average, results. An example is an endorser who says she lost 20 pounds in two months using the advertised product. If the advertiser doesn’t have proof that the endorser’s experience represents what people will generally achieve using the product as described in the ad (for example, by just taking a pill daily for two months), then an ad featuring that endorser must make clear to the audience what the generally expected results are.4
Makes sense, doesn’t it? Yesterday, I did a review of a new book. It’s important for you to know I got a copy of that book free from the publisher. It would take a whole lot more than a free book to influence my opinion5 but how can you know that if you don’t know me — and don’t you deserve to know that I got to keep a copy of the book so you can make up your own mind about the value of my opinion?
That’s the whole deal behind the FTC rule and it’s a rule all of us as bloggers need to know and pay attention to.
The rule says we need to make our disclosures clearly and conspicuously — and no, that doesn’t mean one single disclosure page somewhere on our websites. The FTC is clear about that:
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 manufacturers” be enough?
A single disclosure on your home page 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.6
Would a button that says DISCLOSURE, LEGAL, or something like that which links to a full disclosure be sufficient?
No. A hyperlink like that isn’t likely to be sufficient. It does not convey the importance, nature, and relevance of the information to which it leads and it is likely that many consumers will not click on it and therefore miss necessary disclosures. The disclosures we are talking about are brief and there is no reason to hide them behind a hyperlink.7
So what exactly is meant by “clear and conspicuous”? Here’s what the FTC suggests:
To make a disclosure “clear and conspicuous,” advertisers should use clear and unambiguous language and make the disclosure stand out. Consumers should be able to notice the disclosure easily. They should not have to look for it. In general, disclosures should be:
• close to the claims to which they relate;
• in a font that is easy to read;
• in a shade that stands out against the background;
• for video ads, on the screen long enough to be noticed, read, and understood;
• for audio disclosures, read at a cadence that is easy for consumers to follow and in words consumers will understand.8
Oh… and perhaps the most important thing the FTC reminds us: “If you were paid to try a product and you thought it was terrible, you can’t say it’s terrific.”9
The FTC Guides online — and “The FTC’s Endorsement Guides: What People Are Asking” is a good overview — explain in plain English what we’re supposed to do, why and how.
The FTC is all about trying to make a fair and level playing field.
As bloggers, even in a small field like genealogy, we too have to play fair.
- Judy G. Russell, “Review: New Guide to DNA Testing,” The Legal Genealogist, posted 25 Sep 2016 (http://www.legalgenealogist.com/blog : accessed 26 Sep 2016). ↩
- See “Federal Register : Code of Federal Regulations,” National Archives, archives.gov (https://www.archives.gov/ : accessed 26 Sep 2016) (“The Code of Federal Regulations (CFR) is a codification (arrangement of) the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government”). ↩
- “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” Federal Trade Commission, 16 CFR Part 255, 2009, PDF online, FTC.gov (https://www.ftc.gov/ : accessed 26 Sep 2016). ↩
- “Introduction,” The FTC’s Endorsement Guides: What People Are Asking, FTC.gov (https://www.ftc.gov/ : accessed 26 Sep 2016). ↩
- Hey, I may be easy, but I’m not cheap! ↩
- Ibid., “How Should I Disclose That I was Given Something for my Endorsement?”. ↩
- Ibid. ↩
- Ibid. ↩
- Ibid., “Other Things for Endorsers to Know.” ↩