Is blogging or tweeting out an opinion about a product or service advertising?
If you are being paid to do it, or if you have received the item in question as a freebie for a company, as of December 1, 2009, you are bound by the same truth-in-advertising guidelines as advertisers.
- Advertising must be truthful and non-deceptive;
- Advertisers must have evidence to back up their claims; and
- Advertisements cannot be unfair.
The FTC has released a new set of guidelines (81-page-pdf) to explain its expectations. If you are a blogger that writes endorsements, or has received any kind of merchandise or service in an advertising sampling program, you must disclose that relationship and describe the typical results. And if you are an advertiser or business reaching out to bloggers, tweeters, facebookers, YouTubers or other content creators, you must be aware of these guidelines and do everything in your power to see that they are followed.
The Problem At Hand
A few months ago I decided to follow one of those Facebook advertisements about the Acai Berry, as seen on Oprah. I was curious what all the fuss was about. I had heard about these berries everywhere it seemed.
When I clicked through, I landed on a “blog” that had a testimonial from a women that “just happened” to live right down the street from me. Later when I clicked through on another ad, I landed on a different “blog” of another woman that lived in my small town just outside of Houston.
I smelled a rat.
And apparently so does the FTC.
It all boils down to the relationship. IS the endorsement provided by the content creator “sponsored?'” You can read Jerimiah Owyang’s excellent discussion about sponsored conversations and what they entail.
The New Rules of Sponsored Conversation
The FTC says it will look at two parameters when analyzing positive statements about products and services. Is the speaker:
- Acting solely independently, in which case there is
no endorsement, or - 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?
While it isn’t exhaustive, they would consider the following as evidence the “speaker is compensated by the advertiser or its agent”:
- whether the product or service in question was provided for free;
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;
- the value of the items or services received.
Just because the advertiser/company has no control over the final message will not “automatically disqualify that statement from being deemed an ‘endorsement.’”
Moreover, if a content creator does not disclose the relationship and makes unsubstantiated claims, the advertiser or company could be held liable.
However the FTC ”would consider the advertiser’s efforts to advise these endorsers of their responsibilities and to monitor their online behavior in determining what action, if any, would be warranted.”
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.
What To Do In the Real World?
Some bloggers, like Katja Presnal, point out that their opinion is not impacted by these opportunities, and probably that is true for many bloggers. She also says the guidelines really won’t change how she does business. Ethical bloggers and companies are already following these guidelines. Others like Bill Sledzik hail the move by the FTC. He makes a good point that bad actors have proven it can’t be self regulated.
However, I will counsel my clients, as I always have, to encourage bloggers and other content creators to disclose our relationship in anything that they write. Often I bake the disclosure into the event itself to make it natural for bloggers to do this. “XYZ company had us out to check out their new gizmo. Wow, what a great time, etc.”
If a blogger doesn’t disclose, I might consider adding a comment to the post that discloses the relationship, though it is not certain that this would meet the standard. Additionally, I might send an e-mail asking the blogger to add a disclosure in the post, along with an explanation of the FTC rules.
Moving away from the guidelines, I don’t recommend paying bloggers to write about your product or service on their blog. I think that this type of content carries less credibility than allowing them to experience something and draw their own conclusions. But that is more a question of strategy and approach than anything that is impacted by these new guidelines.
If you are in any way impacted by this be sure to read the guidelines and the explanation from the FTC yourself. Don’t rely just on pundits and news articles for this one. It is much too important to leave it to others.
Now that the FTC has released its guidelines, it will be up to real-world experience and case to see how this will go. There are still a lot of questions that are unanswered.
In the meanwhile I would keep your eye out for the IRS, I would not be at all surprised if they address the issue of the value of freebies next.
Photo is provided courtesy of Shutterstock (example of disclosure)
