Solid Solution for Bloggers on New FTC Rule

Replies to This Discussion

Permalink Reply by Carl Dombek on January 3, 2010 at 1:28pm

This type of "badging" is clearly overkill and, in my estimation, counterproductive. It clutters your blog unnecessarily and seems amateurish to disclaim everything.

As a former broadcaster, we were subject to the FTC's "payola" rules, which are essentially the same thing as the new rules. If you received something of value, you have to state it; it's really that simple. As a current blogger (http://bit.ly/Qjoj4) I recently wrote about two Georgian sparkling wines. I'd been given them for the purpose of sampling them, so I said simply that, "Bagrationi 1882 provided me with two bottles of sparking wine so that I could taste it for myself."

Here's an example excerpted from the FTC's "Guides Concerning the Use of Endorsements and Testimonials:

A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog” where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge.

I don't believe it's necessary to go to the dramatic lengths suggested above to remain compliant.

Permalink Reply by Candice Broom on January 3, 2010 at 8:23pm

My dad was a radio personality (starting in the 70's and on for 30 years) and would do 5 minute long conversations about a product that were obviously paid endorsements. That is how media works. I'm not afraid of these new FTC guidelines.

When I worry about the future, I just pour myself an ice cold glass of... haha, just kidding!

But seriously I just usually add a line like, "Thanks, Chocolate Company, for providing us with samples of your delicious confections for review."

Permalink Reply by Where2NowMag.com on January 4, 2010 at 4:42pm

Hi Carl,

Personally, I think it's much less dramatic to have a small icon in the footer of a blog or site than to have to individually disclose in a sentence or two the situation. As my site contains content from numerous individuals, this solution is far simpler than making sure that when applicable, each author posts the correct disclaimer. And if Gwyneth Paltrow may be facing scrutiny on this, I don't think anyone's safe. http://bit.ly/6SfSJa

I think it's far easier for the FTC to monitor web content than it is to monitor the airwaves. The content is up there for a much longer period and the cost to peruse the internet looking for violators is quite low. While the burden of proof is on them, considering the state of the economy, the gov't may look at this as another revenue stream to pursue. Tax revenue is down and spending is way up. Every little bit helps.

Permalink Reply by Tom Chernaik on January 9, 2010 at 10:01pm

As a founder of CMP.ly, I wanted to weigh in on this. There are a few significant differences to the way that the FTC is treating blogs and tweets with regard to disclosures. The most important distinction is that, under the revised guidelines, the burden is on the advertiser to lead the discussion about disclosures for their campaigns and to monitor their campaigns for those disclosures.

In our discussions with the FTC, and in their public statements, they have made it clear that they are going to be monitoring for disclosures in blog posts, tweets and other communications. While disclosures in your posts may seem like overkill, the FTC has made it clear that they expect disclosures to be included with content wherever material connections exist - even in individual tweets. Site disclosures or one post saying that you may sometimes receive payments or samples are not sufficient. Free review copies, dinners, trips, paid posts and even affiliate links are all treated alike. There is no minimum threshold for price either, as their view is that even small value items add up in the aggregate.

While it is true that simply stating that a material connection exists may be sufficient to limit or avoid liability, if each blogger in a given campaign uses their own language and method of disclosure it is very difficult for an advertiser, agency or marketer to keep track of all of those disclosures and show that they are in compliance.

Our disclosures are free to bloggers and provide short URL codes (for tweets and posts) and full text disclosures (for use where space permits). We may launch visual badges in the future, but at the moment they are not part of our solution. Our new campaign manager tools launching later this month allow advertisers (and their agencies) to manage and monitor disclosures across multiple campaigns.

It will soon be clear to all marketers that disclosures must be an integral part of their word-of-mouth programs and they they will be responsible for maintaining an audit trail of the steps that are taken to comply. If you blog and you receive samples, gifts or payments as part of marketing programs, you will start to be asked to disclose in your posts. Moving forward in 2010 we are sure to see a lot more discussion and clarification around disclosure issues.

While CMP.ly is certainly not the only way for bloggers and advertisers to disclose their connections, we believe that it is the simplest way to create and manage disclosures and the most complete solution that exists today. We will continue to innovate and respond to the needs of the community. Please visit us at http://cmp.ly to learn more and feel free to provide feedback on our solutions.

Permalink Reply by Where2NowMag.com on January 10, 2010 at 10:54am

Tom, I do appreciate you weighing in on this but, quite frankly, I think I'm more confused than before. The reason is mostly due to the fact that a reliable source has told me that technically, my site is not considered a blog - which I agree with, but who knows?

But I think the FTC is going to have to tighten up this rule quite a bit more, especially if the onus is on marketers.

As an example, from a travel standpoint, is the Norwegian Tourism Board responsible to find out which writers they host in their country are bloggers or write for any? And if a writer is hosted by any entity (tourist board, accommodation, attraction) but is not a blog owner, just a sporadic contributor (paid or unpaid), what then? The blog owner didn't receive a freebie, the writer did.

The only positive in this pit of quicksand is that the FTC must prove their case before any action can be taken.

Permalink Reply by Tom Chernaik on January 11, 2010 at 11:18am

Sorry, I know that this can be complicated. Although the FTC and my explanation above discuss this in terms of blogs and bloggers, the guidelines for endorsements covers much more than just blogs. These guidelines have been in place since 1980 covering traditional media (print, radio, TV) and the recent revision adds digital technologies that did not exist when the guidelines were last revised in 1980. With respect to the distinction between blogs and writers in your question above, the disclosure is ultimately tied to the material connection to the "freebie" as you refer to it, and the FTC is looking to the Advertiser to make sure that connections to their marketing programs are disclosed.

These endorsement guidelines apply to blogs and Twitter, but also to web sites, SMS and other forms of digital communications. Key categories for endorsements are product reviews, sampling programs, affiliate marketing and paid posts. When you visit a travel web site or a big box store web site there tend to be product reviews listed. If those reviews were paid for, or the writer had a material connection to the content (they receive a sample, gift or have a business interest - even a small one - in the purchase of those products) then a disclosure is required.

Remember that people are free to leave comments about products on web sites and blogs as they wish. However, they need to disclose if they have been included in a marketing program or they have a financial interest in the topic.

Using your Norwegian Tourism Board example, the Norwegian Tourist Board does not have to know which writers are traveling in their country and *might* write about them. However, if they create a marketing program to invite travel writers to visit Norway and write about their experiences, they will be required to have a policy in place to lead the discussion about disclosures and to monitor those disclosures in their campaigns.

If blogger X took a trip to Norway on his own and decided to write about that experience Blogger X can write posts as general comments with no disclosure necessary (because there is no material connection to disclose).

However, if blogger Y took an all expense paid trip to Norway sponsored by the Norwegian Tourist Board and then decided to write about her experiences on that trip Blogger Y would need to disclose that a material connection exists and the responsibility would be on the Norwegian Tourist Board to lead the discussion about disclosure for their marketing campaign and monitor Blogger Y's posts for the appropriate disclosures.

If blogger Z happens to work for the XYZ Travel Agency and decides to write about an XYZ agency travel package trip to Norway, the post would need to include a disclosure. Note that the XYZ agency would be responsible for the disclosures in their own marketing program and not the Norwegian Tourist Board.

I hope this helps to clarify these issues. I think it is unlikely that the guidelines will change, but in the coming months (as the FTC begins to issue warning letters and initiate actions against advertisers) we will get a much clearer sense of how these guidelines will be interpreted. In the meantime will continue to be on the forefront of these issues and provide simple tools and resources to help the community comply.

Permalink Reply by Tim Leffel on January 24, 2010 at 1:37pm

I run one of the most popular travel gear review blogs (Practical Travel Gear) and have brought this subject up with multiple PR people, affiliate ad people, and others you would think would care about this ruling. Close to 100% of them think it's not enforceable and that the only people who should have any worries are the sleazy "pay for post" types that are actually getting compensated directly for talking up a product or service without disclosing it. Otherwise, it's business as usual in their eyes since the current guidelines are way too burdensome and print editors are patently ignoring them (even though if you read the fine print it's not just bloggers that are supposed to disclose every relationship). The people I'm talking with represent huge brands and popular destinations that everyone has heard of too, companies with plenty of lawyers at their disposal.

The common sense approach would be to have a disclosure policy on your blog stating that you at times receive products/services at no cost---which is completely natural for reviewers of any kind---and then have a one-line disclosure like those mentioned here already in the post. ("So and so company sent me this widget to try out...") For 99.9% of the bloggers out there, that should be plenty. Until a test case comes out where the FTC shows they can actually enforce this and make it stand up in court, in my opinion it's much ado about nothing.