FTC Disclosures and You

On December 1, 2009, the Federal Trade Commission (FTC) updated their rules regarding advertising disclosures. It was the first time that the rules specifically brought bloggers under the FTC rules and guidelines. And the blogging world, since then, has been trying to figure out what to do.

The FTC provisions are set out in 16 CFR Part 255. That’s fancy talk for the Code of Federal Regulations, which is where Federal rules and codes are made public. It’s a lengthy legalese-filed document, crafted by a team of very knowledgeable and capable attorneys and regulators. But it’s not in plain English and has left a great deal of room for interpretation.

The FTC rules pertaining to bloggers are not specific. There is no numbered list telling bloggers exactly how to comply with the new rules. And that has created a wide range of responses by bloggers from many different niches. Some are up-front and suggest overt and clearly placed disclosures. Others believe that they put it on a ‘Disclosure Policy’ page and that it’s up to the reader to read it.

While the FTC does not provide a clear set of what a blogger can and can not do, it is very clear in the guidelines that all disclosures must be “clear and conspicuous“. You’re thinking, that sounds very legalese so what does that mean in English?

For several decades, the FTC didn’t concern itself with bloggers. However, it was due to a rise in complaints by consumers regarding what they deemed to be unethical practices that caused the FTC to step in. Our government is very paternalistic. Bloggers on their own were not able to standardize the practice of disclosure so the FTC stepped in and basically said ‘If you’re not going to do it, we’ll do it for you.’ It became increasingly difficult to determine what was or was not an advertisement or endorsement, so the guidelines are trying to set up a paradigm where it’s clear what the relationship is between the parties.

Will the FTC come after bloggers for non-disclosure? What does it mean to comply with FTC disclosure guidelines? Why do I have to do it if Other Blogger isn’t doing it?

Will the FTC come after bloggers for non-disclosure?

The short answer is No. The longer answer is ‘it depends’. The FTC is a large organization that polices millions of advertising and media (both new and ‘main stream’) impressions daily. With over 150 million blogs worldwide (Source: Blogpulse), and hundreds of thousands of companies advertising in the US, that’s a lot of data for the FTC to keep tabs on. Which means that, on a daily basis, they are not trolling the internet reading blog posts to determine if any one blogger in particular is telling their readers they received a product for free or that the links are affiliate links.

However, and of course there is always a however, if your readers feel they are being mislead or that you’re not being forthright with your links there is nothing to stop them from reporting you to the FTC. And a few complaints for the same blog will likely pique interest. In addition, if you’re participating in brand or PR driven promotions that are generating a lot of buzz, traffic or media the FTC may look into what types of disclosures are being made. In February, 2010 the FTC did take notice of an Ann Taylor campaign using bloggers. After investigation, the FTC gave Ann Taylor a one-time pass with regard to ‘blog disclosure’. But it only highlights that the FTC is not turning a blind eye to the relationship between bloggers and brands.

What does it mean to comply with FTC disclosure guidelines?

Complying with the FTC disclosure guidelines means telling people when you are advocating on behalf of a brand, product or service. It doesn’t mean disclosing what type of compensation or any aspects of your agreement. It’s simply about being up-front about why you’re mentioning a brand, product or service.

The FTC standard states that all disclosures need to be clear and conspicuous. What does this mean?

No one knows exactly what ‘clear and conspicuous’ means in terms of blogger disclosure. There have been many discussions on this topic by bloggers, ‘social media experts’, companies trying to get people to use their ‘disclosure compliance’ mechanism as well as PR agencies and brands. Ask 5 people and you’re likely to get 7 different answers. However, I think Mary Engle of the FTC says it best when she says the disclosure should be straightforward and up-front. You can see her short video below:

In conclusion, the FTC guidelines for Endorsements and Testimonials in Advertising are not some set of onerous rules designed to prevent bloggers from making money or creating authentic and genuine content. The FTC guidelines are a ways to level the playing field among those who receive compensation in exchange for their promoting a brand, service or product.

Just be up-front, clear and straightforward with your readers or viewers and you’ll be just fine. Don’t make your readers or viewers hunt around to determine what the relationship is. By burying it, making them click several links, taking them to a 3rd party compliance page or using cryptic descriptions you’re only setting yourself up for potential problems and not being forthright with your readers.

Remember that you, as a blogger, are much more invested in the workings of blog management. Not everyone who reads your site is a blogger. And, basically, wouldn’t you want to know if the review, endorsement, ‘shout out’ or what have you is genuinely their own or if they’re being paid to say something? The average reader likely does not assume that you’re being compensated to talk about things on your blog.

There is nothing wrong with being compensated to endorse, promote, advertise or share information about a brand, service or product. If you’re forthright and honest with your readers and viewers, they’re more likely to continue the relationship.

Yes, it’s true that different types of sites may require different types or means of disclosure. Nonetheless, if you have a relationship, disclose it. In addition, there may be times when you’ll want to disclose that you do not have a relationship. Don’t hesitate to say so. Remember, honesty is always the best policy when it comes to FTC disclosures.

What are your thoughts about the FTC disclosure rules? Are you confused about what you have to do? Has the FTC gone too far? Are you mad because you disclose and others don’t?

Note:  In 2013, the FTC updated the decades-old Dot Com Disclosure guide. To learn more about how this update may impact your business or online work, check out FTC Dot Com Disclosure updates and what they mean for bloggers, brands, influencers, content creators, online professionals, and entrepreneurs.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship.