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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.

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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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