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For Bloggers: How to Comply With The New FTC Guidance on Disclosing Products Provided For Review

On March 12, 2013, the FTC released a staff guidance document to provide additional information on disclosure in online advertising.  This material is relevant to bloggers and affiliate marketers in several ways.  (1) The receipt of free products for review by bloggers is typically viewed by the FTC as falling under the umbrella of advertising.  Indeed, the new document includes an example covering receipt of products for review, (2) bloggers who run sponsored posts for brands are engaging in advertising, and (3) affiliate marketing is a form of advertising.

c5f6c09b6703cff704e7cccfd29f096e 400x237 For Bloggers: How to Comply With The New FTC Guidance on Disclosing Products Provided For Review

Note: Many thanks to Christine at 15 Minute Beauty Fanatic for making the above image for me!

As a bit of background, the FTC requires “clear and conspicuous” disclosure of a material connection with an advertiser any time a product is endorsed, both in blog posts and in social media.  The receipt of a free product for review constitutes a material connection.  Before the March 12 release, many bloggers typically put a disclosure at the bottom the blog post and, in social media, would include a hashtag such as #spon, #ad, or #paid.  For information on the original FTC Guides, see my older post on Complying With The FTC Guides.

The new material now expresses the rule that a “clear and conspicuous” disclosure should be one that is prominent, close in proximity to the relevant claim or endorsement, and should be placed so that distractions such as other ads or links will not detract from it.  To achieve this, the FTC says that advertisers should do the following (I am omitting some items applicable only to banner ads or eCommerce retailers):

  1. Place the disclosure as close as possible to the triggering claim.
  2. Take account of the various devices and platforms consumers may use to view advertising and any corresponding disclosure.
  3. When a space-constrained ad requires a disclosure, incorporate the disclosure into the ad whenever possible. However, when it is not possible to make adisclosure in a space-constrained ad, it may, under some circumstances, be acceptable to make the disclosure clearly and conspicuously on the page to which the ad links.
  4. When using a hyperlink to lead to a disclosure, make the link obvious; label the hyperlink appropriately to convey the importance, nature, and relevance of the information it leads to; use hyperlink styles consistently, so consumers know when a link is available; place the hyperlink as close as possible to the relevant information it qualifies and make it noticeable; take consumers directly to the disclosure on the click-through page; assess the effectiveness of the hyperlink by monitoring click-through rates and other information about consumer use and make changes accordingly.
  5. Preferably, design advertisements so that “scrolling” is not necessary in order to find a disclosure. When scrolling is necessary, use text or visual cues to encourage consumers to scroll to view the disclosure.
  6. Display disclosures before consumers make a decision to buy.
  7. Repeat disclosures, as needed, on lengthy websites and in connection with repeated claims.
  8. Necessary disclosures should not be relegated to “terms of use” and similar contractual agreements.
  9. Prominently display disclosures so they are noticeable to consumers, and evaluate the size, color, and graphic treatment of the disclosure in relation to other parts of the webpage.
  10. Review the entire ad to assess whether the disclosure is effective in light of other elements — text, graphics, hyperlinks, or sound — that might distract consumers’ attention from the disclosure.
  11. Use audio disclosures when making audio claims, and present them in a volume and cadence so that consumers can hear and understand them.
  12. Display visual disclosures for a duration sufficient for consumers to notice, read, and understand them.
  13. Use plain language and syntax so that consumers understand the disclosures.

The FTC also expressed dissatisfaction with the use of certain hyperlinks as disclosure, something that I have also personally expressed concern with in the past.  Some services, such as comp.ly have attempted to come up with a hashtag link system is far from clear.  The FTC now makes clear that links must be prominent and very clearly communicate their message.  Further, hashtags must be clear and #spon is likely insufficient as a disclosure for tweets.

Ultimately, according to the FTC, the ultimate test is not the size or location of the disclosure, although they are important considerations. Instead, the ultimate test is whether the information indended to be disclosed is actually conveyed to consumers.

What This Means For Bloggers

In Example 21 of the document, the FTC provided an example specific to bloggers receiving products for review.  In the example, a blogger received a product for review and disclosed that at the end of her post.  The FTC noted that the disclosure was insufficient because several links appeared before the disclosure.  Because those links could distract the reader to another source before he or she read the disclosure, the disclosure was insufficient.  To remedy the matter the blogger should move the disclosure to a more prominent position in the post, before the links.

In other examples, the FTC made clearer their expectations for endorsement in social media.  In Example 14, they portrayed a twitter endorsement of a product with a bit.ly link at the end leading to disclosures.  In example 17, the FTC provided an example using the hashtag #spon and stated that consumers might not understand its meaning.  However, at one point in the examples, the FTC provided a way to fix the matter by placing the word “Ad” before the tweet.

How to Comply Now?

I suggest the following in order to meet the new FTC expectations.

For receipt of products for review:

  1. Place your disclosures early in your post, above the fold if possible, and before any outbound links, especially if the links are to a page associated with the products.
  2. Place it as close to the endorsement of the product as possible.
  3. Repeat your disclosure at the end if the post is long or if you continually repeat an endorsement.  For good measure, I will likely start placing the disclosure in text near the start and also always repeat it at the end.

For example, I might now start a blog post this way (actually I already often do this): “Company A gave me a great new mascara to review and I really love it.”  Later in the post when I rave about the product again I might write “this is one of the best mascaras for lengthening that I have tried in some time (a representative of company A sent the product to me to review).”

Want it to sound less dorky (for lack of a better word)?  Something like this might work instead for your repeat. “I am glad that a representative of Company A sent me this mascara to review because it really is one of the best that I have tried in some time.”

For paid posts:

Paid endorsements can be treated the same way as those for receipt of products.  Place a clear disclosure at the front of the post and repeat it if needed.  For good measure, you might want a policy of always repeating it at the end.

For social media:

  1. Put social media disclosures up front.  For example, a paid tweet should start with “Ad” or “paid tweet.”
  2. Do not rely on hashtags or bit.ly or comp.ly links to disclose.

If your tweet does not endorse a product, you can feel safer.  For example, a link to your post with just the title “Product X review” does not endorse anything.  But be careful when your title does so.  If your title is “I love the new Company X mascara!” you are clearly endorsing that product and, if it was given to you free, you must disclose that.  One possibility is to preface the tweet with “given to me free” or something to that effect.  If it is a paid post, adding “Sponsored” to the title could help.  Regardless, it will make auto posting of blog posts to twitter more challenging.

For affiliate links:

The FTC has been notorious for ignoring affiliate links in its guides.  They tend to never specifically address them.  But such links are advertisements, and thus, a connection must be disclosed.  Some previous options were disclosures at the end of posts or asterisks next to links with an explanation elsewhere.  Those would now no longer be sufficient.  One possibility is to move any generic disclosure, such as “this site uses affiliate links,”  to the beginning of posts, but perhaps clearer, given that many consumers may not understand what an affiliate link is, would be to put ‘(ad)” or similar after such links.  Complicating the matter though is the use of a service such as Skimlinks, which monetizes links that even the blogger might not intend or be aware of.  At this time, this is a not fully addressed gray area.  Since I am aware of when my links are monetized, whether through Skimlinks or otherwise, I will probably go the route of putting (ad) after the links with my other disclosures at the end remaining in place to further reinforce it. I might also move my Skimlinks disclosure banner to a prominent location in the sidebar, while still retaining my in post disclosure as well.

Final note: I am an attorney, but this is not intended to be, nor is it, legal representation of any kind. If you believe these issues affect you and are uncertain how to proceed without legal counsel, please consult with an attorney.

Update: I decided to make disclosure buttons for the top of my posts. Click here to learn how I did it.

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  1. Thanks so much, Carleen, for putting this in layman’s terms!

  2. Thanks for this post. I appreciate your thorough overview of the new guidelines and how they impact bloggers.

  3. Wow, thank you very much for this comprehensive review of the new FTC guidelines. While I don’t yet do many reviews of products provided by companies, I do have an affiliate link that I refer to at the end of posts for which it is an issue as well as a disclosure page explaining the affiliation. I will have to give some thought as to how I came make the affiliation more “prominent” when appropriate. ugh

  4. I have never understood why people (esp blogger reviews) try to hide that the post was sponsored. I don’t find a review that was sponsored or based on a comp a deterrent to the writer’s opinion of the product (as long as they seem to be honestly writing about the good and bad). I prefer to say EXACTLY what the sponsorship entails, and often, on reviews that were not sponsored (especially if its a favourable review) will write something like ‘this review is in no way sponsored or approved by XYZ company’.

    I am less likely to trust a review that says nothing, but i learn on social media was sponsored, than someone who says ‘yea, i got this free, but this is my honest review of it’

  5. Looks like you and I are on the exact same page! Which is good considering we are both attorneys-turned-affiliate marketers. :) I’m discouraged by the people I have heard say that they just refuse to comply. However, as more merchants are held liable (like Legacy Learning Systems was), they may force the affiliates to comply or they will be booted from the programs. I think a lot of the big media companies are going to be very careful with this as well when they work with bloggers and specific disclosures will likely be required in order for the blogger to get the free products. BzzAgent is already very strict about that.

  6. Do you know how this would pertain to honest, negative reviews of products sent for consideration? I’m not entirely sure how disclosure on social media would work for that. Also to clarify, with social media if you’re just linking to a product review and not doing an endorsement in the tweet, do you still need to add the disclaimer of it being sent for free?

  7. I feel bad that US bloggers now have so many ‘regulations’, in Australia we are lucky to not have this implemented…that said, about 95% of bloggers disclose in Australia (even though it isn’t Law to do so)

    I’m afraid if we (Aussie bloggers) had to do what is stated above, I would give up doing reviews (even though most I pay for myself anyway) The FTC may as well be dictating your whole post!

  8. great post! thanks for sharing x

  9. Great post and very detailed and informative explanations of the new FTC rules.

  10. Thank you for this, I think you have been very clear in interpreting the guidelines! We don’t have any specific laws relating to this here in Australia, but many of my readers are from the US so it is relevant. I think disclosure is a good thing all round and have always done it (as I’m sure you have too!) as I think it’s more credible if you are honest with readers! :)

  11. Thanks for the comments everyone! Mai, negative reviews present an interesting situation. You are hardly “endorsing” a product if it is a negative review. So in theory the guides then don’t apply. But I still disclose with those anyway. Plus, if you got it for free and are willing to publish that you didn’t like it, that really bolsters the credibility in my opinion. Mostly though I figure it is best just to put out as much info as you can and that is best for everyone all around.

  12. OMG WHAT A WELL WRITTEN “EASY TO READ” BREAKDOWN! Thank you for taking the time out to compose this to us bloggers, I found it very helpful! Have a great day!

  13. Thanks Leslie!

  14. Hi! Thank you so much for this, it’s extremely helpful. One question I’ve been wondering since these guidelines were first rolled out ages ago is, does the FTC expect us to go back and update all of our old posts published before these laws were created to include disclaimers? Or does it only apply to posts published after these guidelines came into effect? Thanks again!

  15. Kristina, unfortunately the answer to your question is far from clear. Technically, since old material would still be “live” and published, it arguably should be updated. Yet, at the same time, doing so is extremely impractical for many. Also, the FTC does not have a history that I know of with enforcing things retroactively. My approach has always been to just make changes going forward, but I will go back and perhaps update things on popular older posts that still get a lot of traffic and anytime that I am updating an older post for any reason. In my case, I also had always tended to disclose in the first few sentences anyway and did that long before the original guide updates, so I also worry less about it.

  16. Thank you so much for this detailed post. It was incredibly helpful to know how to comply with the rules.

  17. Thank you for making this easier to understand.

  18. Thanks so much for this post! One question though. What if I was given a product by a company and wasn’t asked to review to it, but I did a write-up on it anyway? How should I disclose this?

  19. Great job of breaking it down! Thank you.

  20. Very helpful, thank you!

  21. Nicole, I would still disclose it the way I disclose all press products. I normally say something like “I was given this product by Company X for review.” You could leave out the review language part if you like.

  22. This is so helpful! Thank you for the clear explanation.

  23. Popcorn Glamour says:

    What is really great about the new guidelines is that the fashion/beauty magazines will finally have to disclose which articles are sponsored by the advertisers, the paid ads will now have to right next to the “articles” so consumers can see the blatant double advertising, and how much of the photos have been photoshopped. Oh wait……. :)

  24. This was VERY helpful information! Thank you SO much for this post! I fully intend to link back to this for the few readers I have!

  25. Thank you so much for translating this information and it’s relevancy to bloggers! Great advice!

  26. I wonder if this is just for US based bloggers or worldwide. I’m based in UK and review also product sent from US. Would you know answer to that? Thank yoy

  27. Lucie, this is US regulation that really can’t be enforced against bloggers in other countries. With that said, disclosing is always the ethical thing to do. But, since you are in the UK, you don’t need to worry about doing it exactly as the FTC requires.

  28. Thank you very much Carleenp. i do always disclose I just wanted to know if I need to follow exactly. Thanks for clearing that up for me

  29. Great post! Good to know! Love your blog! :)

  30. Thank you for this.

    As a former journalist, I think it’s unfair that only bloggers have to do this. Newspaper outlets never add the fact that they received the book that they are reviewing for free, but they are always sent review copies, travel writers don’t have to say if they were on a paid trip, etc. since it’s assumed that their opinions are unbiased. Although I disclose at the bottom of my posts like we’ve all been told to do previously, I just wish the FTC would let us bloggers make our own decisions regarding disclosure just like they let reporters do. In some cases, I don’t think it’s relevant as if we are swayed by every little freebie. The internet was created with free speech in mind after all. That’s my two cents, for whatever it’s worth.

  31. The government seriously doesn’t have anything better to do than NITPICK over exactly HOW we disclose? I have never been sneaky about where my products come from for reviews. I started putting an “official” disclosure at the bottom of my posts when they first came out with all these rules, just to cover my butt, even though I typically had a disclosure worked naturally into the upper portion of the post, anyway. But I think that putting all that garbage at the TOP of the post is going to add a lot of visual clutter that will annoy readers more than it will help them. I *really* don’t want to have to stick notes after every flippin’ affiliate link – both for similar reasons, and because it makes it LOOK a lot more like all your site is, is advertising, even if readers knew exactly what was what before.

    And beyond all that, what the heck has happened to personal responsibility in this country? If I don’t like what a blogger does or doesn’t write, I can choose to NOT READ THE BLOG. If my readers weren’t complaining about how my disclosures were done, before, why should the government walk all over my right to write the way I see fit?

    (Sorry. Can you tell I’m more than a little bit fed up with all the hullaballoo?)

  32. I think you are not alone in your thoughts on this Rachel and I tend to share some of them myself. One thing to note is that you don’t really have to put the disclosure at the very top of your post if you haven’t said anything yet to endorse the product. It just has to be as close as possible to where you do so an before links that might take the reader away before they see the disclosure. Of course to make things easy, just always putting it the top is what many (including myself) will do.

  33. great post! very helpful information that all bloggers need to know!

  34. Umm I’m sorry but these people do not pay for my ish nor they do any of the work that I do. They can F off because I am not changing my formating or the way I do a post because of their stupid guidelines! Thank you very much.

  35. WOW!! Another great post. Bloggers should take note of these new rules for blogging..

  36. Carleen, this is an excellent and informative post for the blogging community. Thank you for all the work you obviously put into it.

  37. This is awesome. Very helpful information for bloggers like me. Thanks!

  38. Thank you for this post… it is so much clearer and easier to understand than the guidelines themselves and is a great resource for bloggers. I’ll be sharing it with bloggers I know!

  39. Thanks a BUNCH!

  40. I hate change, but I’m glad I saw this post to let me know what needs to be done.

    Thank you!

  41. Thank you so much for clarifying the new regulations. I haven’t done any product reviews on my own blog (in receipt for free product and/or $) … only affiliate links. However, I do blog for a company on THEIR blog. Do I need to put this disclosure in every blog post I write for them?

  42. Hi Eva! In the original update to the guides, the FTC said that disclosure was not necessary on a brand’s own site. So a brand endorsing its own products on its own site needs no disclosure since it is obvious that they would endorse their own products and pay people to write for them etc. If you were given a free product from another company and wrote about it on there though, then you would need to disclose that. But otherwise, you should be fine.

  43. Thank you, Carleen! :)

  44. Awesome tips! Thank you.

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