The Federal Trade Commission (“FTC” or “Commission”) is adopting revised Guides Concerning the Use of Endorsements and Testimonials in Advertising (“the Guides”). The revised Guides include additional changes not incorporated in the proposed revisions published for public comment in November 2008.Reading legal documents has never been a strength of mine, which made this blog - Understanding the New FTC Guidelines, very helpful to me.
I was very surprised to discover that some of the FTC guidelines had not been updated more recently. With the changing technology and use of social media, I imagined most FTC guidelines would at least need to be updated every 5 years or so, but that does not seem to be the case. In fact, it is my understanding that the FTC guidelines concerning the use of endorsements and advertising had not been updated since 1980!
The new guidelines do, however, take into consideration the new and diverse relationships forming between advertisers and bloggers (and other social commentators on the web).
Under the new guidelines, this relationship between companies or advertisers and online commentators needs to be honest and transparent. Companies that pay or give free products to online commentators in order to generate positive buzz or favorable for their products will now have to ensure that these relationships are clearly and conspicuously disclosed. Otherwise, they will face liability for deceptive advertising practices. The bloggers will also face similar liability for misleading statements and non-disclosure of material relationships.
These guidelines seem pretty fair in my opinion. If I was reading my favorite blogger’s review of the latest Blackberry phone, I would want to know if he or she had been paid by the company to write about it. There may be no way to know, but I would also be curious if the blogger had been paid to write a particular view point, or simply paid to write anything about the product.
Of course, there are no guidelines for people who want to just blog about their favorite products – those who have not been contacted by the company or their advertisers. But, how do we know who has and who has not been involved in a material relationship with the company or product they are discussing?
One aspect of these new guidelines which does not seem to be mentioned too often is responsibility. Who is responsible for monitoring the bloggers and other online commentators? Who is responsible for checking to see if a blogger has been paid? Who is responsible to make sure that the paid bloggers do in fact disclose this information? Many people suggest it is up to the bloggers to self-regulate. According to these people, bloggers who do not self-regulate and follow the guidelines will be called out by the community – and that will be punishment enough. Other people argue that marketers should be fully responsible for advising bloggers of their responsibilities. In my opinion, it is important to do both. Bloggers must self-regulate and be involved in the community enough to spot others who may not be abiding by the guidelines. I think it is also important for advertisers and marketers to fully inform bloggers and other online commentators of their responsibilities before they establish any type of relationship, monetary or otherwise.