Bloggiesta Mini-Challenge: FTC Disclosure Requirements for Bloggers

Bloggiesta Mini-Challenge: FTC Disclosure Requirements for Bloggers

You’ve probably heard rumblings for a while about FTC disclosures. I certainly have. First, it was you have to disclose the fact that you’ve received a book for review or be subject to scary fines. Next it was just do a blanket disclosure on your site and you’ll be good to go. Elsewhere, it was don’t worry about it, you don’t need to disclose it. Which is it? Do you or don’t you disclose? It’s confusing and a little scary. My goal today is to un-confuse and un-scary it for you.

But first, the obligatory disclaimers. I am, in fact, a lawyer in real life. However, I am not an expert in FTC issues, and I have not dealt with these guides in a professional capacity. Thus, the following information is not intended to be or to replace actual legal advice. That said, I am going to use my legal smarts to try and help simplify the FTC requirements.

Without further ado, here are ten things you need to know about FTC disclosure requirements in the context of book blogging. It’s a bit of a long ride, so you might want to grab a snack first.

1. Reviews of books you received for free from authors or publishers are considered “endorsements” and are subject to FTC disclosure laws and guides.

“[A]n endorsement means any advertising message . . . that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.” 16 C.F.R. § 255.0(b)

The FTC has clarified that “an endorsement would be covered by the Guides if an advertiser – or someone working for an advertiser – pays a blogger or gives a blogger something of value to mention a product, including a commission on the sale of a product. Bloggers receiving free products or other perks with the understanding that they’ll promote the advertiser’s products in their blogs would be covered, as would bloggers who are part of network marketing programs where they sign up to receive free product samples in exchange for writing about them or working for network advertising agencies.”

So, even though there is no contract or requirement that you review the books you receive from authors and publishers, reviews of those books qualify as endorsements, as do reviews of books obtained from NetGalley and Edelweiss, as well as reviews of products received from programs like Amazon Vine.

These examples from the FTC helped me understand the endorsement distinctions better:

Example 8: A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog’s fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides.

Assume that rather than purchase the dog food with her own money, the consumer gets it for free because the store routinely tracks her purchases and its computer has generated a coupon for a free trial bag of this new brand. Again, her posting would not be deemed an endorsement under the Guides.

Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides.

There is some support for the idea that a negative review is not an endorsement, because such a review is unlikely to be seen as advertising for that particular book. However, I think it is probably best practice to treat every review of a book you got for free from a publisher or author as an endorsement.

2. Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser.

This one’s easy, kids. Tell the truth. You know, always, but especially when you receive a product for free and are talking about it on the internet. See 16 C.F.R. § 255.1(a). One of the purposes of the FTC is to prevent and prohibit “unfair or deceptive acts or practices” in all commercial activities. It is deceptive to give a positive (or even slightly more positive) review to something just because you received it for free. It is even more deceptive when it is unclear from your review that you received it for free.

3. Endorsements must be disclosed in plain language in the review.

You just need to get the information out there. You don’t need a lawyer, legalese, or a fancy turn of phrase. Just state the connection in each endorsement review.  A blanket disclosure on your site won’t cut it. Check out the FTC FAQs:

Is there special language I have to use to make the disclosure?

No. The point is to give readers the information. Your disclosure could be as simple as “Company X gave me this product to try . . ..”

Would a single disclosure on my home page that “many of the products I discuss on this site are provided to me free by their manufacturer” be enough?

A single disclosure doesn’t really do it because people visiting your site might read individual reviews or watch individual videos without seeing the disclosure on your home page.

Blurg. I’m definitely guilty of that last one. See my About page.

4. Disclosures must be placed “clearly and conspicuously” – probably at or near the top of your review.

There are a number of factors that the FTC uses to determine whether a disclosure meets the “clearly and conspicuously” standard, but the bottom line is that readers on your site need to be able to notice, read, and understand the disclosure. The guidelines specifically state that “[s]imply making the disclosure available somewhere in the ad, where some consumers might find it, does not meet the clear and conspicuous standard.” It also states that a disclosure may not meet the clear and conspicuous standard if the reader has to scroll to get to it.

Your safest bet is to place the disclosure up top.

5. The disclosure needs to be in a normal font, size, and color.

This is part of the “clearly and conspicuously” standard discussed above. The .com Disclosures state that “[i]t is the advertiser’s responsibility to draw attention to the required disclosures.” Not only are you required to have a disclosure, you are required to draw attention to it. So, in addition to placing it prominently, you need to make the look of the disclosure comparable to the look of the rest of the post. This means no minuscule fonts and no colors that blend in with your background.

6. Disclosures need to appear appropriately no matter what device a reader is using to access your review.

These days, you have to assume that people are accessing your site from mobile devices. So, you need to make sure your disclosures are clear and conspicuous when viewed from a variety of devices. Remember that scrolling to get to a disclosure is disfavored, and that certainly becomes a greater concern the smaller the screen is. Again, the best bet? Place that disclosure up top.

7. Disclosures need to match the format of the review.

This one is pretty easy. If you do a written review, do a written disclosure. If you do an audio review (like in a podcast), do an audio disclosure. If you do a video review (like in a vlog), do a video disclosure.

8. Disclosures also need to appear when you reference your endorsement reviews in social media.

Yep. You read that right. You have to disclose endorsements in social media too. Because social media posts tend to be short and limited in space, that means you have to convey a disclosure using a clear and conspicuous shorthand. The FTC has provided some guidance on this point:

What about a platform like Twitter? How can I make a disclosure when my message is limited to 140 characters?

The FTC isn’t mandating the specific wording of disclosures. However, the same general principle – that people have the information they need to evaluate sponsored statements – applies across the board, regardless of the advertising medium. A hashtag like “#paid ad” uses only 8 characters. Shorter hashtags – like “#paid” and “#ad” – also might be effective.

A simple tweet with the title of and a link to your review probably does not constitute an endorsement itself and therefore probably does not need a disclosure in the tweet – the one in the review will likely be sufficient.

However, a tweet that indicates the nature of the review probably does constitute an endorsement and therefore probably does need a disclosure.

Also, you should put the disclosure in every endorsement tweet (or similar social media post). Doing it once or twice in a conversation is not sufficient, because there is no guarantee that readers coming in mid-conversation will see the disclosure.

9. You need to disclose other endorsements and connections that affect your credibility.

“When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.” 16 C.F.R. § 255.5

So, even if you paid for your brother’s book, you need to disclose the connection in your review. If you work for the publisher of the book you’re reviewing, you should disclose that too. And those affiliate links? Yep, they’re endorsements that require disclosures too. Here’s what the FTC FAQs say on those:

I’m an affiliate marketer with links to an online retailer on my website. When people click on those links and buy something from the retailer, I earn a commission. What do I have to disclose? Where should the disclosure be?

Let’s assume that you’re endorsing a product or service on your site and you have links to a company that pays you commissions on sales. If you disclose the relationship clearly and conspicuously on your site, readers can decide how much weight to give your endorsement. In some instances, where the link is embedded in the product review, a single disclosure may be adequate. When the product review has a clear and conspicuous disclosure of your relationship – and the reader can see both the product review and the link at the same time – readers have the information they need. If the product review and the link are separated, the reader may lose the connection.

As for where to place a disclosure, the guiding principle is that it has to be clear and conspicuous. Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn’t good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.

10. When in doubt, go to the source material.

The FTC has a number of resources intended to help guide you through their endorsement and disclosure requirements. The two I used the most in preparing this post are Guides Concerning the Use of Endorsements and Testimonials in Advertising and .com Disclosures: How To Make Effective Disclosures in Digital Advertising. Both of these documents are available online, are relatively short and easy to understand, and include lots of examples. And these FAQs are helpful too. If you have questions about any of the things discussed above, I’d suggest going to those resources straight from the FTC.

Oh, and what about the repercussions of not disclosing? I’m not exactly sure. The FTC FAQs say that there is no fine associated with failure to disclosure and that they are not monitoring bloggers:

I’ve read that bloggers who don’t comply with the Guides can be fined $11,000? Is that true?

No. The press reports that said that were wrong. There is no fine for not complying with an FTC guide.

Are you monitoring bloggers?

We’re not monitoring bloggers and we have no plans to. If concerns about possible violations of the FTC Act come to our attention, we’ll evaluate them case by case. If law enforcement becomes necessary, our focus will be advertisers, not endorsers – just as it’s always been.

The take away? I’d say, disclose your endorsements and connections because it is a good practice and will foster trust with your readers. And, as an added bonus, you won’t have to worry about the FTC.

Again, none of the information in this post is intended to be or to replace legal advice.

The challenge, which I myself will be accepting, is to make two posts compliant with the FTC regulations described above. These can be blog posts or social media posts. (For an example of a disclosure done right, check out April’s disclosures over at Good Books and Good Wine.) Then come back here and leave a comment, complete with links to both posts, to enter to win a book (any review of which will not be subject to disclosure!) from the Book Depository (up to $15). I’ll use to choose a winner on Monday, March 31, 2014. Happy disclosing!

The winner is Jenny from Reading the End! Congrats, Jenny. And thanks to everyone who participated.