The FTC has updated its Guides concerning endorsements, which has an effect on bloggers who receive free products from companies or PR firms for review. I have written a full length article on the updates, complete with the pertinent text of the Guides, Examples, and FTC Commentary, followed by suggestions for implementation. That article is located here. This blog post is the short and simple version for those who do not wish to read the long version with all of its detail.
One quick disclaimer: Although I am an attorney, this material is not to be considered formal legal advice or legal representation of any kind. If you have a website that is likely to be scrutinized by the FTC, I recommend that you consult with your attorney.
What is Covered by the Updates?
The process is quite simple. If you receive a free product to review on your blog, or if you post on forums or twitter about a product as part of a word of mouth advertising program, you generally will need to disclose that you received it. If you are paid to post, you must disclose that. There are various factors that apply on a case-by-case basis to determine definitively if you must disclose, but outside of personal blogs that don't normally do reviews and do not usually work with brands, a blog that reviews products will usually have to disclose a free item received from a brand when it gives that item a positive review. Those disclosures must be "clear and conspicuous." The guides also include updates to address celebrity and expert endorsements, and consumer testimonials.
How Should a Website Implement the Updates?
(1) Bloggers who receive products for review from companies or intermediaries (e.g. PR firms), or who are paid for their reviews, generally must disclose that relationship when they give a positive review of the product. If a blogger purchases a product on his or her own, there is no disclosure requirement, as there is nothing to disclose. In circumstances where a person reviews a product they received unsolicited on a personal, disclosure likely would not be required, unless perhaps the product was valuable. How valuable is unknown. The FTC will decide such issues on case-by-case basis. See my longer article for more detail on this. Pay to post circumstances would always require disclosure.
(2) Bloggers must provide accurate statements and honest opinions. Stating “I thought product X cured my acne” would be fine if, as a blogger, you really thought that. Stating “Product X cures acne” may be too broad because it falls outside of the realm of personal opinion. Stating that Product X also cures wrinkles when there is no representation from the manufacturer that it does so, would be impermissible. However, stating that “I noticed that, in addition to treating my acne, the product seemed to make my wrinkles appear smaller” should be acceptable, provided it is a true statement.
(3) Connections to advertisers must be “fully disclosed,” and those disclosures must be “clear and conspicuous.” The FTC does not set out details about how to disclose, but based on the requirement of “full” disclosure and statements in examples about “clear and conspicuous disclosures,” the mere existence of a disclosure page on a website would appear to be insufficient. Disclosure could be accomplished in various ways:
- State in the text of the review that the product was sent by a representative of the company. For example, a review could open with the line, “I received a new body lotion from the ABC company to try for review.”
- Provide a disclosure at the end of the review. For example, provide a statement such as: “This review is based on a product sent by a representative of the company.” Such a statement could also add “for more information please see my disclosures page,” with a link to a disclosure page that more fully explains the site’s policies about receiving and reviewing free products. (See Beauty and Fashion Tech’s Disclosure Page)
- A paid post could either state that it is paid in the text or, like the example above, could state that “the author received monetary compensation from the manufacturer for reviewing this product.” It could then also provide a link to a disclosure page if desired.
(4) Failure to Comply can result in in fines and liability. Will the FTC be policing the standard everyday blogger? Probably not. However, the Guides are meant to help assure voluntary compliance and the FTC would likely look into any complaints about any given site. In any event, even if enforcement seems unlikely, I suggest that it is in your best interests as a blogger, and in the best interests of the blogosphere as a whole, to comply with the Guides.
A Few Unknowns: It is not clear whether the guides would require disclosure of the use of affiliate links. They do not discuss the matter or explicitly require disclosure of such links, but arguments can be made that the use of affiliate links can make a blogger an endorser of a product. The updates generally are not retroactive, but some questions can arise about material published before December 1, 2009, that remains published or is republished after that date. It is also unclear whether people who are paid to post must disclose the amount that they were paid. The Guides are silent and simply state that the relationship must be disclosed. For a much more complete look at these unknown items, see my full length article.
Read my full length article: How to Implement the FTC Guides Concerning Endorsements: A Guide for Bloggers