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FTC Blogger Disclosure Requirements
Summary: "The revised Guides also add new examples to illustrate the long standing principle that "material connections" (sometimes payments or free products) between advertisers and endorsers - connections that consumers would not expect - must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other "word-of-mouth" marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement - like any other advertisement - is deceptive if it makes false or misleading claims." [FTC Press Release]
Effective Date: Decemember 1, 2009
§ 255.0 Purpose and Definitions
The Guides set forth the general principles that the Commission will use in evaluating endorsements and testimonials, together with examples illustrating the application of those principles. The Guides do not purport to cover every possible use of endorsements in advertising. Whether a particular endorsement or testimonial is deceptive will depend on the specific factual circumstances of the advertisement at issue.
In cases involving law enforcement subpoenas, searches and seizures, and the 4th Amendment, Bloggers may be protected by the Privacy Protection Act. In cases involving liability of the blogger for third party content posted to blog, Bloggers may be protected by Sec. 230, the Good Samaritan Provision.
(b) For purposes of this part, an endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) 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. The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the endorser and may be an individual, group, or institution.
(c) The Commission intends to treat endorsements and testimonials identically in the context of its enforcement of the Federal Trade Commission Act and for purposes of this part. The term endorsements is therefore generally used hereinafter to cover both terms and situations.
(d) For purposes of this part, the term product includes any product, service, company or industry.
(e) For purposes of this part, an expert is an individual, group, or institution possessing, as a result of experience, study, or training, knowledge of a particular subject, which knowledge is superior to what ordinary individuals generally acquire.
§ 255.1 General considerations.
(a) Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser. [See §§ 255.2(a) and (b) regarding substantiation of representations conveyed by consumer endorsements.
(d) advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers [see § 255.5]. Endorsers also may be liable for statements made in the course of their endorsements.
Example 5: A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser's products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion's ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition. The advertiser is subject to liability for misleading or unsubstantiated representations made through the blogger's endorsement.
The blogger also is subject to liability for misleading or unsubstantiated representations made in the course of her endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously that she is being paid for her services. [See § 255.5.] In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.
§ 255.5 Disclosure of material connections.
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. For example, when an endorser who appears in a television commercial is neither represented in the advertisement as an expert nor is known to a significant portion of the viewing public, then the advertiser should clearly and conspicuously disclose either the payment or promise of compensation prior to and in exchange for the endorsement or the fact that the endorser knew or had reason to know or to believe that if the endorsement favored the advertised product some benefit, such as an appearance on television, would be extended to the endorser. Additional guidance, including guidance concerning endorsements made through other media, is provided by the examples below.
Example 7: A college student who has earned a reputation as a video game expert maintains a personal weblog or "blog" where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the time it provides the gaming system that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance.
Example 8: An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer's product. Knowledge of this poster's employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.
Enforcement: fines of up to $11,000 [reportedly]
Criticism of the new rules
- Declan McCullagh, FTC Blogging Rule Draws Online Protests, CBS News (Oct. 8, 2009),
- Ron Hogan, An Open Letter to the FTC, GalleyCat (Oct. 6, 2009)
- Eric Goldman, A Fuller Explanation of Why the FTC Endorsement/Testimonial Guidelines Violate 47 USC 230, Technology & Marketing Law Blog (Oct. 12, 2009)
- Gaines, Dustin, Abuse of the Journalist's Shield: A State-by-State Survey of Blogger Liability for Trade Secret Misappropriation and Texas's Shield Statutes as a Model for Federal Preemption (April 24, 2013).
- Bloggers and Journalists , Online Newshour (February 14, 2005) (video) (discussing how bloggers force the resignation of Dan Rather over his coverage of President Bushes National Guard Service, the Resignation of the first White House blogger Jeff Gannon for using a fake name and asking the President a softball question, and, in extended discussion, the resignation of CNN Executive Eason Jordan for comments at the World Economic Conference at Davos).
- The Economic Impact of Blogging , Todd And = Marketing + Media (Nov. 26, 2006)
- FTC Press Release, FTC Publishes Final Guides Governing Endorsements, Testimonials, FTC (Oct. 5, 2009)
- Notice of adoption of revised Guides, Fed. Reg., Federal Trade Commission (October 2009),
- Text of the Revised Endorsement and Testimonial Guides
Bloggers treated as Press
- Center for Public Integrity v US Dept of Health and Human Services , Civil Action No. 06-1818, Slip at 8 (JDB) (DCDC August 3, 2007) (CPI found to be a "representative of news media" for purposes of FOIA where information sought from HHS would be published in an online newsletter).
- Federal Campaign Law FEC
- Final Rules and Explanation and Justification for the Internet Communications Rulemaking , FEC Fed Reg Notice (Mar. 24, 2006) ("media exception" applies the same online as offline, and specifically, applies to bloggers the same as anyone else, citing cases of blogs that were found to fall under "media exception").
- Press Passes / Credentials
- Bloggers Score Press Passes for Fashion Week , BizReport (Sept. 13, 2006)
- White House Approves Pass for Bloggers , NYTimes (March 7, 2005)
- Parties to Allow Bloggers to Cover Conventions for First Time , Washington Post (July 6 th , 2004)
- Bloggers should be allowed to join the journalist party, CNET 10/23/2007
- Non-'casual' bloggers win legal shield in House, CNET 10/18/2007
- FTC to Bloggers: Drop that Sample!, Center for Internet and Society 10/22/2009
- As The FTC Goes After Bloggers, Doctors Making Millions Promoting Drugs With Little Oversight, Techdirt 10/22/2009
- Ad group: FTC blog rules unfairly muzzle online media, Ars Technica 10/20/2009
- IAB Takes On FTC Over Silly Blogger Disclosure Rules, Techdirt 10/20/2009
- IAB's Brilliant Open Letter to the FTC on Blogger Rules, PFF 10/20/2009
- Crovitz on FTC Blogger Rules, Tech Lib Front 10/20/2009
- Is Blogging a Slog? Some Young People Think So, Pew Internet 2/4/2010
- Blogs Provide Storm Evacuees With Neighborhood-Specific News, Wash Post 9/7/2005
- Online News Consumers Become Own Editors (AP), AP 7/26/2005
- In video blogging, mundane is in, IHT 7/26/2005
- One blog created 'every second', BBC 8/2/2005
- RSS Enables Google News Junkies, Internet news 8/9/2005
- Blog Readers Spend More Time and Money Online, Clickz 8/12/2005
- Feeding on RSS, emarketer 8/12/2005
- Survey: The Blogs Are Growing! The Blogs Are Growing!, Information Week 8/16/2005
- One In Five Internet Users Visit Blogs Regularly, Internet Week 8/16/2005
- IETF Signs Off on Atom, eweek 8/19/2005
- RSS To Carry Spyware Before Year's Out, InternetWeek 6/14/2005
- RSS tool sends out alerts for TV, radio, CNET 7/19/2005
- White House admits first blogger to briefing, USA Today 3/9/2005
- Tackling the RSS Bandwidth Bugbear, InternetNews 9/30/2004
- RSS Edges Into the Bureaucracy, wired 11/16/2004
- RSS Feeds Hunger for More Ads, Wired 10/15/2004
- RSS Comes with Bandwidth Price Tag, eweek 9/21/200