Earlier this month, the Federal Trade Commission issued revisions to its “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” which will take effect Dec. 1. The new guidelines address such issues as blogger compensation and the “Results Not Typical” safe harbor previously afforded advertisers.
Notably, the new guidelines allow for fines up to $11,000 per violation for bloggers failing to disclose material connections to companies they cover. The guidelines are so strict that merely providing a product for review is considered a form of payment under the new regulations.
While the guidelines have not even taken effect yet, they are already starting to have an impact on the blogging, marketing and advertising communities. To learn more about the guidelines and what they mean for marketers, eM+C spoke with Julie O’Neill, an attorney at the Washington, D.C. office of the law firm Morrison & Foerster and a former staff attorney for the FTC. The following are highlights from the discussion:
Advertisers should have a written agreement — or an email exchange if a full agreement isn’t feasible — that requires endorsers to clearly disclose any material connection between themselves and the advertisers. The agreement should also specify where the endorsers will post their reviews so that advertisers can monitor them. If advertisers find that endorsers do not disclose their connections and/or made claims that advertisers can’t back up, then the agreement should give advertisers the ability to require endorsers to make changes — including pulling the endorsements, if necessary. Advertisers can also ask endorsers to limit their endorsements to purely subjective statements that don’t require substantiation, such as general comments about the great price, color, flavor and so forth.