Wild, Wild West No More: FTC Disclosure Rules Regarding Blogger Compensation

In October 2009, the Federal Trade Commission (“FTC”) issued revised “Guides Concerning the Use of Endorsements and Testimonials in Advertising” (the “Guidelines”) that may impose disclosure requirements on bloggers (and Tweeters, Facebookers and other online publishers) who endorse certain products and services.

The Guidelines, which until 2009 had remained unaltered for nearly 30 years, call for bloggers to disclose their relationship with a company when they are being paid or otherwise compensated by that company to comment favorably on its products or services. The Guidelines also suggest that bloggers may be held liable for making misleading or unsubstantiated claims about such a product or service.

As a blogger, you may be asking, “Why must the FTC bathe in the tears of we poor bloggers”?  Relax.  The Guidelines really aren’t that onerous or unfair if you take a moment to think about the requirements and the public policy rationale behind them.

First, the disclosure requirement applies only to bloggers endorsing companies for compensation (i.e., ad revenue, spokesperson fees, commissions, a “steady stream” of freebies, etc.).  If, for example, you’re a fashion stylist blogging about fashion simply because you L-I-V-E (*fingers snapping*) fashion, or because you want to gain exposure for your work, you may say all the wonderful things you want about how fierce your Jimmy Choos look or how informative you found Elle’s cover story on makeup for Eskimos to be.  Of course, there are other issues pertaining to libel, copyright, and other matters which are outside of the scope of this article but which you must nonetheless be aware of before posting anything.  At All.  Ever.

Second, for those bloggers receiving compensation, the Guidelines are easily complied with.  In fact, the disclosure statements suggested in the Guidelines themselves are fairly benign (i.e., “ABC Company gave me this product to try.”  That’s not so bad, right? Just make sure to clearly and conspicuously disclose your relationship, preferably within the actual blog post pertaining to the product or service.  Although there is no definitive FTC statement on this issue, a blanket statement on your blog home page really doesn’t cut it because it does not adequately notify your audience about which brands are compensating you to endorse which products and services. If you are using WordPress, you can automate the process by using the Add Post Footer plug-in.  You’ll need to enter a default disclaimer, which you can then override on a post-by-post basis using a custom field.

Third, the FTC has gone out of its way to indicate, publicly, that they are way more interested in educating bloggers than suing them.  They’ve got bigger fish to fry.  Furthermore, they’re on record as saying that there is no monetary penalty for a first-time violation, even if the violation is a fairly serious one (which it won’t be if you simply follow the Guidelines and/or use common sense).

Finally, fourth, if you’re serious about your blogging career, the FTC’s meddling is actually a really positive thing.  By issuing these guidelines, the FTC is regulating transparency in blogs the same way it regulates transparency in newspapers, magazines and television.  Bloggers are no longer the red-headed stepchildren of journalism.  Rejoice!  After all, you’ve been burning the midnight oil, furiously typing away while the night pulls itself apart on the crimson seams of yet another sunrise for a while now…  You’re not doing this for your health, right? And the FTC’s imprimatur should be a great help to you the next time you pitch that stodgy CPG brand about working with you, or that fuddy-duddy media outlet about using you as a talking head.

It is important to note that even after making any necessary disclosure statements, you must also avoid making any false, misleading or unsubstantiated claims about a product or service you endorse. Again, The FTC is not out to get bloggers sharing their opinions but, at the same time, you shouldn’t make blanket factual claims about an endorsed product that you can’t substantiate and support.