Understanding the New FTC Guidelines: Your Questions Answered

If you’re blogging professionally or even semi-seriously you’ve likely heard about the new FTC guidelines regarding bloggers and how we disclose any relationships with companies who have paid us to endorse or review products. As is usually the case when something changes, rumors and misinformation are swirling. This article seeks to give you a basic understanding of what’s changing with the FTC regulations and how it may affect you as a blogger. I’ll try to lay to rest the inaccurate rumors you may have heard.

What do the new FTC guidelines expect from bloggers?

The newest FTC guidelines require bloggers to disclose any relationship with an advertiser and to make “verifiable” claims. Relationships with advertisers include any compensation received in exchange for a review–including receiving a free product. As BlogHer.com’s own Liz Gumbinner has said, “The intent of the FTC guidelines is to protect consumers from deceptive marketing practices.”

Richard Cleland is Assistant Director of Advertising Practices at the FTC. He’s been providing interviews around the country and clarifying the FTC’s expectations for bloggers and disclosure. In a phone interview with Ed Champion of Reluctant Habits, Cleland told Champion that “the FTC’s main criteria is the degree of relationship between the advertiser and the blogger. . .If there’s an expectation that you’re going to write a positive review, then there should be a disclosure.”

However, the FTC does acknowledge that some cases are different from others. In an interview with Virginia Prescott at New Hampshire Public Radio, Cleland had this to say about receiving sample products versus being paid for a review:

“That’s going to depend on the circumstances. If we’re talking about getting one free product or something sent to you and you happen to write about it on your blog, that’s not the type of relationship that has to be disclosed. But if you’re part of a network and you’re consistently receiving products to test and blog about, then that raises the implication that these gifts are quid pro quo and that’s why you’re writing the positive reviews.”

In answer to Ms. Prescott’s question about how the FTC will hold bloggers accountable for false claims, Cleland said, “It’s going to be on a case-by-case basis. It’s going to have to be a situation where it’s actually justified, the extent of the injury is such that it justifies using our resources to look at the possibility of an enforcement action.”

It’s worth noting that those of us with Amazon Affiliate links are expected to disclose those as well. Champion says Cleland “didn’t see any particular problem with a book review appearing on a blog, but only if there wasn’t a corresponding Amazon Affiliates link or an advertisement for the book.” Though that example is specific to books, it could apply to any product linked to an affiliate.

Do the new guidelines include Facebook and Twitter?

Yes. Many bloggers type paid tweets and/or become Facebook fans of certain products, then share those tweets and fan pages with their friends. Just because the advertising relationship is outside a blog, it’s still a relationship and the blogger is still compensated–the rule for disclosure and true testimonials applies. Caroline McCarthy at Cnet gives this example of how the FTC guidelines apply to a blogger (or, in this example, a celebrity) on Facebook:

“[A] celebrity or other prominent figure with loads of friends on Facebook receives free hotel stays from Hotel Chain X in exchange for running Hotel Chain X ads on his or her blog. If that person then signs up as a Facebook fan of Hotel Chain X–which, remember, could mean that the person’s name can show up for his or her Facebook friends alongside Hotel Chain X display ads on the social network–he or she could be held liable by the FTC.”

As for Twitter, the FTC expects you to fit in a disclosure regardless of the 140 character limit. Cleland told McCarthy, “There are ways to abbreviate a disclosure that fit within 140 characters. You may have to say a little bit of something else, but if you can’t make the disclosure, you can’t make the ad.”

How can the FTC monitor every blog out there?

As Richard Cleland made the rounds of interviews, this question often came up. Cleland’s answer was that the FTC’s goal right now is to educate people on what is expected of them. He also indicated that the FTC would be “looking primarily at the advertisers to determine how the relationships exist” (from Ed Champion’s interview).

In an article on CNN, Eric Kuhn reports that “Richard Cleland . . . admits there will be no new team to monitor all the blogs, and that enforcing these guidelines would be a ‘game of whack-a-mole’ given the numbers involved.” Kuhn goes on to say that, “The new guidelines are viewed as more of an educational tool than any kind of requirement, and geared at advertisers more than bloggers. If numerous complaints are filed regarding a blog, the FTC is likely to investigate that the advertiser has properly advised the blogger of these guidelines.”

In his interview with Caroline McCarthy at Cnet, Cleland said, “…in the bigger picture, we think that we have a reason to believe that if bloggers understand the circumstances under which a disclosure should be made, that they’ll be able to make the disclosure. Right now we’re trying to focus on education.”

What about the $11,000 fine for bloggers who don’t disclose payment?

Mashable.com, TechCrunch, CNN, and several other trusted news sources were reporting early Monday that bloggers who don’t disclose payment will be fined $11,000 per violation. In fact, the updated FTC regulations (link downloads a pdf) don’t mention an $11,000 fine at all. Eric Kuhn of CNN tweeted Monday night, “I just spoke with an FTC spokeswoman. She said there is NOT a $11,000 fine for breaking the new guidelines re endorsements.” Unfortunately, none of the original articles with erroneous information have been updated to reflect that there is not currently a fine for violations.

Do I need to go back to my old posts and disclose for previous gifts or payments?

Lisa Stone, one of BlogHer.com’s founders, gave this advice:

“Since we started this network in 2006, BlogHer’s editorial guidelines have prohibited putting advertising in editorial space on blogs. So if you’re talking about posts you’ve made on BlogHer.com or in your blog IF it’s in the BlogHer publishing network, this question should not apply — it’s against the rules!

If you’re not in the BlogHer Network, we recommend that you update your “About” page with your blog policy about payments and review your blog for the current year and disclose any gifts or payments. For previous years, I think you can disclose on your “About” page the date on which you began your disclosure practices. We are not your lawyer, but as a a general practice we recommend that bloggers disclose any kind of payment at the top of every post written because of a payment of cash, goods, or services.”

Most of us are already doing the right thing and we’re not who the FTC is after. To be sure you’re in the know, download the current FTC guidelines. Then write up a disclosure policy and post it clearly on your blog. Not sure exactly how to write your policy? DisclosurePolicy.org can generate one for you.

This post was cross-posted at BlogHer.com.