FTC Guidelines Are Out: FTC Publishes Final Guides Governing Endorsements, Testimonials

Following CNN has helped me stay on top of news, and this morning it was from KuhnCNN - Eric Kuhn's tweet about FTC Publishes Final Guides Governing Endorsements, Testimonials  that let me know they came out this morning.

Update 3pm pst: Eric Kuhn also posted on the CNN Political Ticker website about the FTC guidelines. There are numerous other articles popping up including on the New York Times (which mentions fellow blogger Linsey Krolik). 

Here is a link to the press release on the FTC website: FTC Publishes Final Guides Governing Endorsements, Testimonials . Here is a link to the PDF Text of the Federal Register Notice for FTC Publishes Final Guides Governing Endorsements, Testimonials.

For background here are some posts written when it was first announced the guidelines would be coming. I wrote a post on TechMamas.com about blogger relations to marketers: It's Not About The Review, It's About The Relationship & Relevance . Eric Kuhn wrote a post on the CNN blog titled "'Mommy bloggers' vow to avoid ethical conflicts". Susan Getgood from Marketing Roadmaps posted before the guidelines came out, with good points on what bloggers should do and Linsey Krolik shared her thoughts on social media law and mommy bloggers liability on the Silicon Valley Moms Blog. There have also been multiple other articles, including this one in the New York Times.

The hot question of today is: What do the FTC Guides Governing Endorsements, Testimonials  mean for bloggers? As I read the legal jargon of the guidelines the first people I turned to are the gals from BlogWithIntegrity.com. We are all still reading the guidelines and am sure there will be many posts. Here are some of what I think are the key items in the PDF Text of the Federal Register Notice for FTC Publishes Final Guides Governing Endorsements, Testimonials (understanding that I am still reading through them myself).

I am going to insert parts of the guidelines to help identify key points (assuming that I can publish those parts under the fair use guidelines - but if not - happy to take it down). It is important to read the full PDF Text of the Federal Register Notice for FTC Publishes Final Guides Governing Endorsements, Testimonials to understand the "whole" picture:

The clips below are excerpts from the PDF Text of the Federal Register Notice for FTC Publishes Final Guides Governing Endorsements, Testimonials

Overall:

"the other commenter noted that the Guides should not “inadvertently regulate everyday word-of-mouth communications among actual consumers regardless of whether such communications take place in person, via e-mail or in new mediums such as blogs or social networking Web sites.”

"This commenter stated that even if consumers participate in advertising sampling programs, their online comments about a particular product should not be considered commercial speech and these consumers should not be deemed “endorsers” when they are free to say whatever they want about the product (or not say anything at all) without the advertiser having any control over their statements."

Whether a speaker is considered "sponsored"?

..."if the speaker was essentially “sponsored” by the advertiser....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."

Whether the speaker is considered to be providing an "endorsement"?

"The comments correctly point out that the recent development of a variety of consumer generated media poses new questions about how to distinguish between communications that are considered “endorsements” within the meaning of the Guides and those that are not."

"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?"

”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..."

"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."

"For example, a blogger could receive merchandise from a marketer with a request to review it, but with no compensation paid other than the value of the product itself. In

this situation, whether or not any positive statement the blogger posts would be deemed an “endorsement” within the meaning of the Guides would depend on, among other things, the value of that product, and on whether the blogger routinely receives such requests. If that blogger frequently receives products from manufacturers because he or she is known to have wide readership within a particular demographic group that is the manufacturers’ target market, the blogger’s statements are likely to be deemed to be “endorsements,” as are postings by participants in network marketing programs. 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."

BLOGOSPHERE: WHAT ARE YOUR THOUGHTS? WHAT DO YOU THINK THIS MEANS? WILL YOU BE DOING ANYTHING DIFFERENTLY? Please comment with your thoughts.

I will just keep on disclosing. As I have more time to read through the document, I will add my own thoughts...

Disclosure: This is not a paid post, that is unless the FTC starts paying bloggers - which they would never of course. This is a reaction I had to turning on my computer this morning and seeing the chatter all over Twitter about the FTC guidelines and trying to understand them myself. Hope I disclosed that correctly.

Comments

[Donna]

I just want to know: Will reviewers who work in print and broadcast media need to disclose their relationships too? When I worked in radio, I developed personal relationships with reps from each of the major record companies and some of the movie studios. I also received every new release from the major record companies plus concert tickets and movie screenings. This was standard practice and I have no reason to believe this has changed.

I have no problems disclosing what I receive from companies and have always done so (albeit not always as overtly as I do now). But I do resent the double standard.

[Cynematic]

Good point, Donna. I think @backpackingdad has also raised some interesting points wrt tv shows and "product placement." And I'm sure examples abound in women's beauty magazines and computer/tech product magazines.

Is it just because bloggers lack lobbyists that they're getting all this attention from the FTC?