Disclaimer: Still not a lawyer

Earlier this week, the FTC released an updated version of its .Com Disclosures guidance for digital advertising, originally published in 2000. While there is some new information here for bloggers and social media influencers who produce sponsored content for advertisers (and I will get into that below), the document’s principal goal is to provide guidance for proper disclosure of advertising claims in digital, and especially mobile, advertising in light of new technologies. Much like the changes in the endorsement guides in 2009 that were prompted, in part, by the rise of social media and blogs.

Simply put,  the FTC is making sure that, as ad delivery technology changes, claims are properly disclosed and not “lost” in the translation from web to mobile displays.

From the social media perspective, most of the information related to accuracy of claims and disclosure of relationships is the same as is covered in the 2009 Guidance on Endorsements and Testimonials. In other words, there isn’t all that much new here. You still  need to disclose material relationships with brands, in a clear and conspicuous manner proximate to your endorsement, and both you and the sponsor have an obligation to be accurate in your claims about a product. Read my detailed analysis of the examples in the 2009 guide if you want more detail.

Is there anything new here for bloggers? Why yes. It’s not a lot but it’s very nice. The .Com Disclosures document includes new examples that will make it easier for people creating sponsored content to comply with the FTC Guidelines, as well as clarity on the proper ways to disclose additional required information about product claims.

The examples:

Where and how to disclose. As far back as 2009, the FTC was already publicly recommending that disclosures not be buried at the bottom of a post or on a separate page (Once More With Feeling: FTC guidelines, bloggers and companies). Now, however, we have an explicit example.

Takeaway: Do not put your disclosure solely at the bottom of your post.

Recommendation: Include a brief disclosure at the top and if necessary, provide additional details at the bottom.

Note that the FTC also explicitly stated that the form of the disclosure should match the content. If it is a video or sound file, the disclosure should be done in the native format — ie in the video or recording, not simply included in a post or annotation on a social site. The disclosure needs to travel with the content.

However, the exact words you use to disclose? Still up to you.

How to disclose in short-form environments like Twitter. The FTC has always said that the disclosure must be proximate to the endorsement. While common sense would indicate that this means in every sponsored Tweet or Facebook post in which an endorsement appears (and that’s certainly how we handle it at BlogHer), that’s not what was happening on Twitter. Not by a long shot. So, the .Com disclosures have a series of terrific examples of the wrong and right ways to disclose on Twitter. Key points:

1. The disclosure must be in every Tweet. You can’t tweet a single disclosure that covers the whole conversation; there is no guarantee that readers will see the disclosing statement.
2. The hashtag #spon is not sufficiently clear.
3. The word “ad” is sufficiently clear, but needs to be in a prominent place. The FTC also suggests not using a #ad hashtag after a URL or shortlink as it could be overlooked.

Recommendation for a best practice:

• Do include an “umbrella” tweet or post that explains the sponsored content you are about to tweet/post. It is good information for your followers, but as above, not sufficient in itself. For example: “So excited to be here as a guest of #BIGHOTEL at the Super Duper Event #ad”
• Use #ad to disclose along with any hashtag the sponsor has requested, but NOT proximate to any URLs in your tweet/update. Make sure the disclosure stands out.

The .Com Disclosures also included one other tidbit that was clearly aimed at advertising disclosure of claims, but is valuable for bloggers as well. When an advertising  claim merits a longer disclosure than is practical for the format, a hyperlink to  additional information is acceptable, provided that anything material, or “triggering” is included in the original advertisement and  the link is clear and conspicuous.  In other words, you cannot bury CRITICAL disclosures in hyperlinked pages, but you can provide additional details.

“Hyperlinks allow additional information to be placed on a webpage entirely separate from the relevant claim. Hyperlinks can provide a useful means to access disclosures that are not integral to the triggering claim, provided certain conditions (discussed below) are met. Hyperlinked disclosures may be particularly useful if the disclosure is lengthy or if it needs to be repeated (because of multiple triggering claims, for example).

However, in many situations, hyperlinks are not necessary to convey disclosures. If a disclosure consists of a word or phrase that may be easily incorporated into the text, along with the claim, this placement increases the likelihood that consumers will see the disclosure and relate it to the relevant claim.

Disclosures that are an integral part of a claim or inseparable from it should not be communicated through a hyperlink. Instead, they should be placed on the same page and immediately next to the claim, and be sufficiently prominent so that the claim and the disclosure are read at the same time, without referring the consumer somewhere else to obtain this important information.” — from the .Com Disclosures Guide. Emphasis mine.

This could be extremely useful for sponsored programs for products and services in highly regulated industries. The sponsored post would still have to meet all the requirements for accuracy, with any critical product claims disclosed in the post, but bloggers wouldn’t have to include all the “fine print” in their posts.

So, some nice clarity for some critical areas. But nothing to get too worried about.

Unless you are creating deceptive mobile ads for weight loss products or jewelry!

Additional resources:

FTC FAQ on the Endorsement Guides (2010)

Eleven Urban Myths about the FTC Guidelines

Last Wednesday, Pinterest changed its Terms of Service (TOS) to allow commercial use.

Wait. What?

You mean commercial boards and sponsored pinning may have been in technical violation of Pinterest’s TOS all these months?

Yes indeedy. Given the importance of widespread commercial adoption of the service to its ultimate ability to monetize, it is highly unlikely that it would have cracked down on the commercial activity, but until last week, the TOS prohibited both commercial use and encouraging commercial use by others unless the activity was pre-approved by Pinterest.

So, what do you need to do if you are planning to use Pinterest for commercial purposes?

You must comply with the Pinterest Terms of Service and the FTC’s Guideline for Commercial Endorsements. Here’s how:

1. You need to have a business account and agree to the Business Terms of Service. If you already have an account, it is easy to convert it to a business account, and if you do not, you simply open it as a business account. Both can be done at business.pinterest.com. HubSpot did a nice tutorial with screen shots if you need a little guidance. Important: ANYONE using Pinterest for commercial purposes, even an individual, needs to have a business account to be in compliance with the Pinterest TOS. The pages don’t look any different but Pinterest has released some tools for the business accounts and has promised more, which is an incentive above and beyond the simple ethical consideration of complying with the TOS!
2. You need to develop your policy for proper disclosure of commercial activity on your Pinterest account to comply with FTC requirements for commercial endorsements. If you are a commercial brand and your account has a company name, your boards likely will be presumed to be commercial content, so you should be fine from a disclosure standpoint. However, if you are an individual, you must make sure that your affiliations are clear. I recommend:

• As a best practice —  put a clear statement in your bio about your affiliations.
• To comply with the FTC, label any boards and pins related to commercial activity in the description. For example, “My Golfer’s Paradise board is brought to you by GOLF BRAND” on the pinboard description, and on the pins themselves, a sponsor statement such as “Sponsored by GOLF BRAND” or “Love this putter from GOLF BRAND. #sponsored.”

Next — and this  part is optional, not a Pinterest or FTC requirement, but I personally recommend developing your own guidelines for your use of Pinterest to best leverage the platform and ensure consistency of your approach over time. Plan the work and work the plan!

If you represent a brand, you want the boards to fit the ethos of Pinterest, and help build awareness, interest, consideration and purchase. Don’t just slap up boards with pictures from your catalogs or details of the latest promotion. Think about how you can make your content valuable to the community so they will repin it and help you spread the word.

If you are an individual, you want your sponsored Pinterest content to be consistent with your non-sponsored personal pins. Your taste and interests are why people have followed your boards, and you don’t want to disappoint. Bottom line, if you have any sort of following, brands will be approaching you. Best to have your own strategy lined up so you know which opportunities are worthwhile, and which ones are not.

I’m back! You had to know I would not be able to resist commenting on the ConAgra/Ketchum “Sotto Terra” blogger events in New York last month that went so horribly, tragically wrong. So wrong that the fallout made it to the pages of the New York Times. Ouch.

I’m not going to rehash the details here, because this post is not about piling it on. The company, brand and agency have been thoroughly schooled in the blogosphere already. Instead, I am going to focus on a few lessons that have nothing to do with the specific brand, that anyone involved in blogger outreach can learn from.

However, this post will make more sense if you know the basics about the ConAgra program. Short version: blogger event in New York. Promoted as an exclusive opportunity to experience a chef-prepared meal. On the day, entree and dessert revealed to be frozen meals. Ooops.

For more details,  please take a moment to read the NYT article and the links below to read the blog fallout after the event.

Lesson Number 1: Don’t fall so in love with your great, clever idea that you can’t see its flaws. Every idea has flaws; every message, detractors. You have got to be willing to be your own devil’s advocate. Ask yourself — what can go wrong? Where can this idea fail? Who might not like our idea and why?  I’m not saying be Debbie Downer on your own creativity. I am however advising you to think it through. Understand that there will ALWAYS be someone who doesn’t like your concept. The question is, are they outliers or your target? If your target audience ain’t gonna like it, don’t do it. That’s what happened with MotrinMoms a few years ago, and it’s clearly part of what happened here.

Poke holes in your own idea. Better you than a bunch of bloggers and the New York Times.

Lesson Number 2: People don’t like surprises. Especially when they make them feel foolish. Think about it. If you are old enough to remember Candid Camera, you’ll know what I mean. The audience of the stunts enjoyed them. The victim, not so much.

More proof? Ever read the back page of a book before deciding whether to invest the time? Ever visit a spoiler site for your favorite TV show for a sneak peek at what’s coming? Ever shake your holiday or birthday presents? Or try to sneak a corner of the tape off and then rewrap it? Yes, brother dear, I am talking to you. Or ransack your mom’s gift closet to see if there’s anything new there? My son did this.

People want to know what to expect. We like to be prepared. In fact, recent research from UC  San Diego suggests that knowing the ending of a book increases our enjoyment.

And we don’t like to be embarrassed.  It is really bad form to embarrass your customers.

Remember this when planning your blogger programs. Building around a big “reveal” is a dicey proposition, and if the reveal might disappoint instead of enchant? Seriously. Go back to the drawing board. Create something that will appeal to your target audience without deception. It may not be as alluring or sexy, but it’s far less likely to backfire. The Sotto Terra backlash was not “bloggers gone wild” by any means. It was people feeling betrayed and deceived. Not a good way to build a relationship.

Lesson Number 3: Disclosure. Do not do programs without disclosing your brand’s participation. EVER! Strictly speaking, I don’t think the Sotto Terra event violates the FTC disclosure guidelines, as full disclosure of the brand’s involvement was provided when the exchange of value (the meal) happened. However, I am not crazy about the ethics here. Bloggers were encouraged to promote an event as a prize, apparently without full information about the sponsor of the event. Could the bloggers have done a little research and learned that the two hosts were ConAgra consultants? Sure. But they shouldn’t have to. That’s your job as the sponsor.

What did you take away from the Sotto Terra story? Please stay away from brand-bashing. I want to focus on what brands, and bloggers, can do better to ensure mutually beneficial outcomes, not on pointing fingers or trashing the participants in this tale.

Related articles

• ConAgra’s Switcheroo Doesn’t Go Over Well With Bloggers (mediabistro.com)
• Advertising: When Bloggers Don’t Follow the Script, to ConAgra’s Chagrin (nytimes.com)
• ConAgra Forced to Apologize for Tricking Bloggers Into Eating ConAgra Food [Public Relations] (gawker.com)

I haven’t written about the FTC endorsement guidelines in quite a while but some things have crossed the transom over the past month that I wanted to share with you.

First, the FTC announced the resolution of its first completed investigation in which the social media aspects of the guidelines applied – Reverb.

Short story: Reverb was accused of “astroturfing” — employees of the PR firm left glowing comments on video game message boards as though they were satisfied customers of products. No fines were assessed, but the consent decree imposes some pretty stringent requirements on the firm and its principal. Read the consent decree for the details.

Two important things about Reverb:

• The deceptive advertising laws existed – and applied to online and social media – well before the revised guidelines were issued last year. Deceptive advertising is deceptive advertising, full stop. The revised guidelines help us – advertisers and consumers – understand how the FTC intends to enforce the law. The guidelines were and are not targeted specifically at blogs.
• The FTC focused on the company and its principal, not the individuals hired to leave the comments. It was the agency providing the direction that was held accountable for the deception. This is consistent with the agency’s statements that it intends to focus on advertisers, not on individual bloggers participating in social media campaigns.

In other FTC news: the agency is going to turn its attention to Green claims. Not surprising given the greenwashing of the past few years. According to Ad Age:

“The guides are expected to tighten standards for packaging claims such as “recyclable” or “biodegradable”; regulate how marketers use such terms as “carbon neutral”; and how quickly and close to the source of carbon output “carbon offsets” must be executed, among other things.”

Another term expected to come in for scrutiny is “sustainability.”

This reminds me of the organic/natural debate. Organic is specific. Products need to comply with very specific requirements to be labeled organic. Natural on the other hand has relatively little meaning, and certainly doesn’t mean something is “good for you.” There are many things in nature that are most definitely not good for humans to breathe or consume. Carbon monoxide. Tobacco. Poison.  You get the idea.

And on Monday, I read an item in Ad Week about the major US advertising associations collaborating on a mechanism for consumers to opt-out of online ads that use behavioral targeting. A move designed to forestall formal FTC action on the issue.

According to Ad Week

“Ads targeted using past Internet browsing history will carry the small logo. Clicking it will bring notice of the targeting used and direct people to a page with options for blocking behavioral targeting.”

Behavioral targeting increases the relevance of the ads to a viewer’s interests, and in that respect, benefits both marketers and consumers. On the other hand, there are legitimate privacy concerns. It will be interesting to see how this plays out.  What do you think?

Update 8 October: The FTC released the proposed new green guidelines on the 6th. The public comment period ends December 10th. The agency also forestalled the game of  ”social media telephone” like the one that occurred last year about the endorsement guidelines (there was more misinformation and disinformation circulating at one point than actual information) by releasing a nice summary PDF of the proposed changes.

When I’m not here, I’m over here –

BlogHer: Disclosing Sponsorship on Twitter: It’s Not That Hard! Really!

Snapshot Chronicles: The evolution of community: BlogHer at 5.

This past weekend, I was in New York for the Travel Blog Exchange conference (TBEX). The primary reason I attended the conference was to represent Blog With Integrity on a panel about blogging ethics, but I also got some great tips and ideas for my somewhat neglected travel blog, Snapshot Chronicles Roadtrip.

This year, I’ve spoken at a number of conferences about integrity, disclosure and the FTC endorsement guidelines. In most cases, the audience doesn’t know very much about the guidelines beyond whatever version of the urban myths are circulating within the community. This is of course why the conference organizers invite Blog With Integrity and usually someone from the FTC and/or a lawyer.

The travel community  was grappling with the ethical issue of sponsored trips  well before the guidelines were revised last year. Travel bloggers are very passionate about ethics and receptive to the approach of best practices — disclosure policies that go beyond what the FTC minimally requires. In fact, many travel blogs already have published policies.

During the Q&A on Sunday, it was clear that the attendees wanted to comply with the FTC requirements,  but they were struggling a bit with exactly what had to be disclosed and how.

And then I had an “Aha” moment. Hard to believe that after all I have written about this topic for more than a year, there would be something I hadn’t thought of, but lo and behold, there was.

I broke it down to a simple equation for disclosure, which seemed to clear things up for a lot of the bloggers at TBEX.

Endorsement + Compensation = Disclosure Required

How to disclose

The best way to disclose to meet the FTC guidelines is within the post that contains the endorsement: “I was privileged to be hosted by…” “I was thrilled at the opportunity to take a trip to (place) courtesy of (sponsor).” And so on. It is not sufficient to disclose in your disclosure policy or About page.

However, I recommend that you also have  a disclosure & editorial policy on your page:

• to let your readers know what they can expect on your blog, especially casual readers or folks that find you through a search engine, and
• to inform marketers and PR people about your interests so they contact you with relevant, appropriate offers.

Relationships and SWAG

Another key point Mary Engle from the FTC and I both stressed on Sunday was the relationship between the marketer and the blogger. If the marketer is reaching out to specific bloggers with sponsored trips and free products, there is a compensated relationship that must be disclosed. If 300 bloggers all get identical SWAG (stuff we all get) at a conference, the reason they received it was as a member of a group, not as an individual. There is no relationship between the marketer and a blogger who got the SWAG. This is still true if distribution of the SWAG is managed using a list of bloggers at the conference entitled to receive it. A list doesn’t create a relationship. Communication between people creates a relationship.

That said, of course, you know my mantra — disclose anyway. The company that provided an item relevant enough that you decide to write about it deserves the props for supporting the conference SWAG bag.

Bloggers, journalists

A touchy subject was the idea that travel bloggers are being held to a higher standard than travel writers for mainstream media who don’t have to disclose. I’ve written about why the FTC doesn’t require disclosure from mainstream journalists many times, and won’t rehash it all again. The brief version is that it’s about the consumer reading the item, not the person writing it. If the consumer would understand that the endorsement was compensated  – in the case of a journalist, by his salary and probably the subsidy of his paper for the trip,  no further disclosure is required.

The predominant sentiment at the conference was that mainstream journalists should be required to disclose as well. I agree. Disclosure is a best practice, full stop, regardless of your publishing channel.

However, I reject the opposite argument, which wasn’t offered by the TBEX audience, but I’ve read elsewhere — if mainstream journalists don’t have to do it, why should bloggers? That’s grabbing the stick from the very wrong end.

I also think it’s counter-productive to worry too much about others. Focus on what you need to do to connect with your readers, provide them good information and entertaining writing, and be honest about any business relationships you have. Compensation or free product may not change your opinion or writing one little bit, but you have to let the reader make that call for herself. You shouldn’t attempt to do it for her.

Twitter?

How to disclose on Twitter always comes up during ethics panels, and Sunday was no exception. It’s also a bit more complex for travel writers taking sponsored trips, as opposed to someone reviewing a single product. A trip occurs over a period of time, and there are only 140 characters. If part of every tweet has to have a disclosure, the tweetstream would get pretty dull.

Mary Engle made an important clarification for us. You have to disclose that the trip was compensated or the product was free in tweets containing the endorsement of the sponsor/advertiser. When you are tweeting about something unrelated to the sponsor — for example,  your experience at a local museum or farmers’ market, there’s no need to disclose because you are not endorsing the sponsor.

Here’s my advice.

• Start your trip with a tweet acknowledging the sponsor (and linking to a post on your blog with more details if you have one)
• Be sure to disclose in some fashion in any tweets endorsing the sponsor: “I love my room at the Aruba Marriott #sponsor” “The beach at host hotel Swanky Resort is pristine.”
• If the trip spans multiple days, make sure you have at least one tweet per day that discloses that your trip is sponsored and by whom. The easiest way to do this is to spread out your endorsements of the sponsor

Related articles by Zemanta

• Eleven Urban Myths about the FTC Guidelines for Endorsements & Testimonials (getgood.com)
• Thoughts on the FTC investigation of Ann Taylor LOFT blogger event (getgood.com)

So many things queued up to write about, including last week’s New Comm Forum, a slew of bad pitches that folks have forwarded over the past few months (Douches, Snakes and Brand Ambassadors) and a great visit to the Dana Farber Cancer Institute yesterday to learn more about the Jimmy Fund.

But the FTC went public this week with the results of its first investigation under the new endorsements and testimonials guidelines, and that news trumps the other (more evergreen) topics.

As reported in Ad Age, the FTC investigated an event held by Ann Taylor LOFT in January to launch its summer collection. The company invited bloggers to attend a special preview of the collection; those that posted about the event within 24 hours were entered into “mystery gift-card drawing” with a value between $50 and $500. (More about the event on Jezebel: February 3, April 28)

Reported Ad Age:

The event and the unusual request for posts to be submitted for a prize received media scrutiny and caught the eye of the FTC. “We were concerned that bloggers who attended a preview on January 26, 2010 failed to disclose that they received gifts for posting blog content about that event,” Mary Engle, the FTC’s associate director-advertising practices, wrote in a letter dated April 20 to Ann Taylor’s legal representation.

According to the article, the FTC decided not to take further action because it was a single event, only a small number of bloggers participated (and some disclosed) and Ann Taylor subsequently adopted a written policy for blogger outreach.

This is exactly what the FTC said it planned to do all along. Its focus would be on advertisers, not individual bloggers, and the initial investigations would likely result in warnings, not indictments.

Taking the step of pursuing an action in the courts is a long expensive process. The harm to the public has to be pretty significant to merit the cost, especially if satisfaction can be obtained more efficiently, as it was here.  I suspect an uncooperative Ann Taylor might have resulted in a different outcome.

What can we learn from this?

The guidelines are intended to prevent deceptive advertising practices. The media may love the (erroneous) idea that the FTC is “cracking down on bloggers,” as Ad Age repeated again in this week’s article, but reality is, the larger burden is on the companies, not the individuals.  The FTC expects the company — the advertiser — to provide guidance to its WOM agents about the requirements. In the Ann Taylor case, there wasn’t much guidance.

While it isn’t covered in the Ad Age article, there was also an element of confusion in the event that probably concerned the FTC. This is entirely speculation on my part, but it’s a fairly informed one.

Basically, if you write about a company or product and subsequently get a gift, you aren’t required to disclose the gift. Unless of course you write about the company again. Further, if you win a sweepstakes or get a product in a swag bag, you don’t really have a material relationship with the advertiser. Your receipt of the product is random. Best practices may dictate disclosure but the endorsement guidelines do not.

Here we have a gift contigent upon a post. That’s compensation, albeit a little ugly. Not a gift. Disclosure required. But confusing.

This is compounded by the contest-like element of the mystery gift card drawing, which makes it look a bit like a sweepstakes. Except not really. Everyone who wrote a post got a gift card, and you had to get the initial invitiation to participate.  Relationship and compensation. Disclosure definitely required.

Bottom line, just a messy confusing campaign all around. Confusion for bloggers about whether they need to disclose, and little guidance from the company on the requirement. Confusion for consumers, because they don’t have the information they need to evaluate the blog posts.

The lesson for companies: Keep blogger outreach programs simple and easy to understand. Provide guidance and training to your word-of-mouth agents. And your employees, especially the ones charged with developing and executing social media programs.

The lesson for bloggers: Think twice about working with companies that don’t inform you that you need to disclose. Push back if you aren’t getting the information or support you need. Also, unrelated to this case specifically, but general advice: read agreements carefully. While I do not think companies can push their liability onto you, I wouldn’t be at all surprised if some tried. That’s just a mess you don’t want to get into.

What I highly advise you to NOT take away from the Ad Age article

A lawyer interviewed in the Ad Age article speculated:

“They’re [the FTC] probably throwing a little fire-starter into it, sending some messages out. The message this time is somewhere between $50 and $500 requires a disclosure.”

My head about to explode. I can just see this quote spawning a new urban legend that there is a minimum and maximum value that the FTC will look at, vis disclosure and enforcement. No no no no no. Compensation is compensation. $5 or $5000. Products or cash.

When in doubt, disclose. There’s never too much information when it comes to informing the consumer. You know. Us.

There’s still a great deal of misinformation about the Federal Trade Commission (FTC) Guidelines for Endorsements and Testimonials (FTC Guides or Guidelines) wafting around on the Internet, and from time to time, it makes its way into mainstream media stories.

We’re trying to chip away at it. Blog With Integrity did the two free Disclosure webinars last year. My colleagues and I leave comments with accurate information when we find posts and articles with errors. Just about every blogging conference since the beginning of the year has had a session about the Guides, and we’re doing the Bridging Brands and Bloggers webinar for PR, marketing and advertising professionals next Tuesday.

But the misinformation persists. So, it seems like the time is now for a little debunking of the urban myths about the FTC Guidelines.

MYTH: There’s an $11,000 fine for violations of the Guidelines.

FACT: The Guidelines explain how the FTC would apply Section 5* of the FTC Act to endorsements and testimonials. They are not rules or regulations, and there are no fines. Any penalties would be assessed by the courts as the result of a legal enforcement process during which the FTC would have to make its case for deceptive advertising.

* Section 5 broadly prohibits “unfair or deceptive acts or practices in commerce.”

MYTH: The FTC dictates how you should disclose.

FACT: There’s no checklist of  ”approved” ways to disclose. The Guidelines simply require  ”clear and conspicuous” disclosure of material relationships between sellers and endorsers when those relationships would not otherwise be clear to the consumer. The FTC  Guidelines do include examples to illustrate the conditions under which disclosure would be required. However, there are no specific prescriptions as to how the disclosure should be done.

If you are interested in best practices for disclosure, take a look at the slides from the general session I did at BlissDom in February.

MYTH: The Guidelines were revised because bloggers are unethical.

FACT: They were revised because it had been 30 years since they were first published. It was time for an update.  Initially because it had become clear that the way disclosure was being handled in traditional media for certain types of products  (like weight loss) wasn’t working as it should. In the process, it became clear that changes in the the media landscape, and specifically, the rise of social media, needed to be addressed.

MYTH: Mom blogs have been singled out for special scrutiny.

FACT: Absolutely not. This was confirmed by Mary Engle, the FTC’s Associate Director for Advertising Practices, during the Blog With Integrity webinar on November 10, 2009.

The FTC Guidelines apply to endorsements and testimonials in all types of marketing including viral,  WOM, blogs, TV, radio and print.

MYTH: Bloggers are being held to a higher standard than journalists.

FACT: The issue at hand isn’t standards or even ethics. The Guidelines are all about making sure that the consumer has enough information to evaluate the endorsement or testimonial. If she would not reasonably expect a material relationship to exist or would not understand it without the disclosure, the endorser should disclose. If the context is clear, disclosure is not required.

In the case of the mainstream media, consumers generally understand that the reporter didn’t buy the item or choose his own topic, and can evaluate the report accordingly. We make different assumptions about people “just like us,” thus disclosure is necessary. A blog or website that operates just like a magazine would be treated like a mainstream magazine because the consumer, or reader, would have the proper expectation. More on this topic in this post.

MYTH: Celebrities are not subject to the guides.

FACT: There are specific examples about celebrity endorsements. The litmus test is the consumer’s expectation. If we would understand the relationship — for example a celebrity athlete wearing logo gear — no disclosure is necessary. We assume a compensated relationship. If the consumer wouldn’t understand the paid relationship, disclosure is required. More on this topic in this post.

MYTH: The FTC said that X was (or was not) a violation.

FACT: The FTC does not speak about specific cases. This could compromise ongoing investigations. More importantly, if it were you, or your company, would you want the FTC passing comment before a full investigation had been completed? I wouldn’t.

MYTH: The FTC is gunning for bloggers.

FACT: The FTC has stated on more than one occasion that its enforcement attention is focused on advertisers and companies, not on individual bloggers.

MYTH: The FTC guidelines violate the 1st amendment.

FACT: The FTC guidelines apply to commercial speech. Compensated, material relationships. They do not apply to opinions where there is no material relationship. If you are paid for your opinion — even if you can say whatever you want — it’s commercial speech. Commercial speech is paid speech. Not free speech.

Free speech is still free. And protected.

MYTH: All you need is a disclosure policy.

FACT: A disclosure (or editorial) policy is a best practice. You still must disclose within the post or tweet if you have a material relationship with a seller.

MYTH: The FTC guidelines will destroy the blogosphere.

FACT: So far, not so much.

Disclaimer:  I am not a lawyer and do not play one on the Internet. This post is my opinion based upon analysis of public records, including the FTC Guidelines.

This post also appears on BlogHer.

Apart from my rather hectic return North on Friday (which you can read about on Snapshot Chronicles Roadtrip), BlissDom was absolutely great, and I wish I could have stayed longer.

BlissDom and Disclosure

As promised, here is a PDF of the complete slide deck from the “You Should Know Better” general session on Friday morning. Kristen Berman from Intuit covered best accounting practices, Liza Barry-Kessler gave an overview of the legal issues facing bloggers in their small businesses, and I talked about disclosure as a best practice and the FTC guidelines on endorsements and testimonials.

We were lucky that Stacey Ferguson was in the audience. She is an attorney with the Federal Trade Commission advertising practices division and was able to help answer a few questions.

I don’t want to dive too deep into disclosure in this post but one thing most definitely bears repeating: the FTC does not dictate how you should disclose other than it must be “clear and conspicuous.” There are many ways to be clear and conspicuous. For example, put the disclosure at the top of the post, at the top of the blog sidebar or within the text of the post as you write about whatever it is. All pretty clear. You just have to be sure that the reader has an opportunity to see the disclosure without searching for it. But… there is no checklist that says the FTC approves these five ways to disclose and does not approve these other five.

That’s why best practices are so very very important. Also common sense. For example, if you have written a long, long blog post, putting the disclosure at the bottom of your post, and only at the bottom, isn’t too conspicuous. No one says you can’t put it there — not even the FTC —  but I will tell you that it’s not a best practice.

On the other hand, if you write snappy short product bits that fit in the first screen (“above the fold”),  a disclosure at the bottom of the post is pretty conspicuous. It’s simple common sense – just ask yourself, if I was reading someone else’s blog, where would I want to be informed about the endorsement or material relationship?

Stacey also made it clear to the audience that the FTC does not require that blogs have a disclosure policy nor does a blanket disclosure policy cancel out the need to disclose in your posts.

Best practices demand that you do MORE than the FTC requires. A disclosure policy is a best practice that helps your readers understand your point of view, your relationships and your biases.  Use best practices and common sense, and you should be fine.  The slides from the BlissDom session have some suggestions, and Blog with Integrity will have more free webinars on this and related topics like copyright and fair use.

Super Bowl Ads
Liked: Snickers, VW, Clydesdales [Updated 2/9 to add that I also liked the NFL, Google and HomeAway ads, all of which were spot-on in their branding]
Didn’t like: All the misogyny (Dodge, Bridgestone, Dove, Go Daddy), creepy eTrade babies, people acting like dolphins, stuffed animals acting like people

Survey for Professional Blogging for Dummies
I’m heads down most days on my book right now, and I’d like your help. A key feature in the book is case studies, anecdotes and tips from successful bloggers. I’d also like to have some trend data about professional blogs. How are people making money? Do they have a business plan? What sorts of opportunities have bloggers gotten as a result of their blogs? So, I’ve got a little survey up on Survey Monkey. If you write a professional or small business blog, I hope you will take it.

Recently, a blogger friend noticed that the disclosure policies on some of the blogs she was reading effectively said that the blogger didn’t necessarily disclose compensation:

The compensation received may influence the advertising content, topics or posts made in this blog. That content, advertising space or post may not always be identified as paid or sponsored content.

I recognized the language immediately as language from disclosurepolicy.org’s Disclosure Policy Generator, but thought that certainly the tool would have been updated to reflect the requirements set out by the FTC guidelines on endorsements and testimonials. A disclosure that you don’t disclose is not in compliance.

Nope. The option is still in the generator.

While it is better to write your own policy, in your own words, I do understand the appeal of widgets. Do yourself a favor, though. If you use disclosurepolicy.org, tweak it to fit your circumstances, and definitely make sure you don’t have this language in your policy.