FTC Puts Its Foot Down on Blogger Freebies

heartThis post is by the lovely Liberty London Girl

Okay hold on to your hats: this is a long post, but there is a lot to cover to ensure that we all understand the ramifications for US bloggers of yesterday’s publication of the US Government’s Federal Trade Commission’s Final Guides Governing Endorsements, Testimonials.

Some bloggers have interpreted these guides to mean that if they favourably review a service they have been given, or a product they have been sent & are not expected to return, they must always disclose that they did not pay for the service or product. Whilst this is generally Good Practice, the FTC is more concerned with bloggers favourably writing about products or services for remuneration (either paid or in-kind) i.e. endorsing product, without disclosing this to their readers.

The pertinent part of the FTC press release reads as follows:
“The revised Guides…illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers…must be disclosed…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.”

The FTC makes it clear that “a consumer who purchases a product with his or her own money and praises it on a personal blog…will not be deemed to be providing an endorsement”. Equally, “Even if that consumer receives a single, unsolicited item from one manufacturer and writes positively about it on a personal blog or…the review is not likely to be deemed an endorsement, given the absence of a course of dealing with that advertiser”

Of course, the confusion arises because it can be argued that if the product sent to the blogger for review is expensive and sought after, then the line between paid for endorsement and considered review becomes blurred. Respecting this grey area, the FTC leaves a lot open to interpretation, and cites the following circumstances which should be taken into consideration:
“whether the speaker is compensated by the advertiser or its agent; whether the product or service in question was provided for free by the advertiser; the terms of any agreement; the length of the relationship; the previous receipt of products or services from the same or similar advertisers, or the likelihood of future receipt of such products or services; and the value of the items or services received.”

However, and this is the area that most directly affects bloggers, the FTC feel that if a blogger regularly receives product “with no compensation paid other than the value of the product itself… because he or she is known to have wide readership within a particular demographic group that is the manufacturers’ target market, the blogger’s statements are likely to be deemed to be “endorsements.”

This means that for bloggers like myself who regularly receive lots of samples, we must ALWAYS disclose that they have been given to us if we review them favourably, or not.

For most bloggers who, unlike me, are not journalists or editors, this entire arena is a brave new world. It’s easy to get blown away by the idea that a publicist actually wants to give you something, maybe even something quite expensive that you really like. And what could seem more natural than to write up a glowing review of the product or experience to say thank you? And maybe to be extra glowingly nice about the product or service in order to build a relationship with the publicist in order to get more free stuff in the future. Thing is, if you bear in mind the guidance given by the FTC, this would be crossing a line.

This may come as a surprise to many independent bloggers who have presumed that, as their blogs are personal communication spaces as opposed to commercial communication spaces, supported by advertising, there are no official codes for them to follow. It certainly came as a surprise to me, as a British citizen, as there are no equivalent codes governing blogging behaviour in the UK or EU – and, to the best of my knowledge, no plans for them in the near future.

However, I now live & work in the US, so these codes affect me too. Fortunately, as a journalist & fashion editor of more than ten year’s experience I have always applied the ethics codes of the print world to my online work. I could hardly afford not to: being seen to flout the ethical considerations of my work as journalist would have ramifications with the people who employ me, and the publicists with whom I deal daily. In short: my credibility would be shot to pieces.

What are these ethical considerations? It’s simple. Divulge to your readers if you have been paid, sponsored, endorsed or been given a product, service or experience by a company or publicist.

Given these new formal FTC guides, I would recommend that any blogger who reviews product or services that they have been given for free through the aegis of the owner, publicist or public relations company should take the time to work out their personal policies and, preferably, make them clear to both readers and publicists.

For example: at the bottom of my blog there is a very long Small Print section that sets out my terms & conditions. Regular readers of my blog will know that I always mention if I have been given something by a publicist. There are several ways to do this: it doesn’t just have to be a bald statement at the bottom of the blog. Sometimes I might work it into the copy: “Digging through the box of beauty samples sent to me recently” or maybe, “In the mail today I received…”. If I am given a hotel stay for free, then I will always write at the bottom of the piece, “LLG was a guest of….” in exactly the same way that I would for a national newspaper travel piece.

Being transparent in your dealings with readers and with commercial agents is always the best way to proceed, then there can be no grey areas.

Of course, there is another discussion to be had as to whether bloggers are being unfairly targeted in comparison to print journalists, but I think it’s more important to clarify the immediate ramifications of the FTC Guides.

Disclaimer: Please bear in mind that I am not a lawyer, and that this post represents my personal interpretation of the FTC Guides and has no bearing in law.

Image by Nickolas Murray

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28 Responses

  1. Marie Denee

    Thank you so much for breaking this down in digestible pieces! I have been reading all the legal jargon, to try to sift out the real meanings behind it all… Thank you very much for this!
    .-= Marie Denee´s last blog ..Monif C. Sizzles with her latest Fall Looks! =-.

  2. thefatandskinny

    This is all so terribly confusing. I think understand why they did this, but I don’t think this is necessary. Then again, you should report whether or not you received the item before hand for a review anyway.
    .-= thefatandskinny´s last blog ..Paris Spring Fashion Week Post 4 =-.

  3. Glendy

    Thank you so much I am getting some hype from big companies now and they want to send me stuff to review, all of a sudden I came across these new guidelines, I always mention when I get something for free that it was a gift from *blank* and just say the company’s name. I am hoping this is more for ethics and that the FTC isn’t meddling with us to try to build up censorship and have us pay blogging taxes >.<
    .-= Glendy´s last blog ..Trend Flash: The Wild Fuzzy Craze =-.

  4. Ashe Mischief

    Oh, gosh! What a mess of language and meanings this all is. It definitely marks a new period in blogging, that’s for certain. While I always try to be clear about what I receive from companies, it seems that in this case, more is better, you know? The more transparency you can provide, the safer you’ll be…
    .-= Ashe Mischief´s last blog ..Mischief Lookbook: Fall 2009 =-.

  5. Rachel

    Thanks for explaining this all in laymen’s terms! As someone just starting out in the blogging world, it makes me sort of nervous. But I guess after dealing with similar topics in journalism school, this shouldn’t be surprising to me. Maybe it’s a sign that more and more people in power will be respecting bloggers and taking us seriously now.
    .-= Rachel´s last blog ..Brimfield Flea Market and Antique Show =-.

  6. Mademoiselle Robot

    In a way, I think this is a good thing. Like you, I have worked as a journalist for a long time before starting a blog, so I am aware of the disclosure side of things and as a habit, I do it on my blog too.
    Since bloggers are becoming more widely accepted, I see more and more of them receiving freebies and plugging them like crazy, sometimes in really clumsy ways which devalues their blog & credibility in my view.
    Guidelines that force people to be a bit more professional are a good thing in my book.
    Thank you for this post! I am wondering now when they will implement something like this in the UK…
    .-= Mademoiselle Robot´s last blog ..London Fashion Weekend by Liane Eltan =-.

  7. Ondo Lady

    OK, now I finally get it. Thanks a lot for taking time out to clarify what this all means as I was getting rather confused. Well I am based in the UK so technically it does not affect me but from now on I will be stating whether a product has been sent to me by a publicist as I do think it is good practice.
    .-= Ondo Lady´s last blog ..Another Issue of Style Sample =-.

  8. britishbeautyblogger

    That’s the best interpretation I’ve read so far so many thanks for that. It’s the final few lines that have really caught my attention though. Currently, I feel bloggers are being unfairly targeted – the playing field is so uneven – and most bloggers aren’t professional journalists, just regular people with a passion for fashion/beauty etc. It’s a huge worry that PR’s are viewing the growing blog arena in the UK as yet more fodder for their client clipping books and aren’t that worried about the ethics of persuasion used on people who have no experience of the ‘pr charm’. I’ve had comments from bloggers that after the euphoria of ‘free stuff’ wears off they feel they have a virtual gun to their heads to post a positive review, and suddenly the pathway to beauty gratis isn’t quite paved with the gold they had previously thought. There is a naivety, particularly among younger beauty bloggers, that is all too easy to turn to a marketing advantage. There is going to be a huge backlash at some stage, and any legislation – enforcable or otherwise – that gives a little bit more clarity is a welcome thing indeed.
    .-= britishbeautyblogger´s last blog ..Anna Sui Collaboration FitFlops =-.

  9. LibertyLondonGirl

    Hi Jen: if you receive a product you should say so in the post. Otherwise how is the reader going to be able to differentiate between things you have already, things you have bought & things you have been given?
    .-= LibertyLondonGirl´s last blog ..How to catch a girlfriend =-.

  10. Jen

    I can see the need for these regulations (those Acai diets blogs, whiter teeth blogs, etc) and think the overall mission greatly outweighs any inconvenience to me as I write my blog posts. Hopefully they extend this to other forms of journalism as well.

    Here is my only question: can I have a blanket statement somewhere on my blog that says I sometimes receive samples or does that need to be included in each individual post?
    .-= Jen´s last blog ..Trendy TOMS =-.

  11. Sandra

    Excellent post! And thank you for explaining the ramifications, both legal and ethical. I, too, have always disclosed when something has been given to me when I review. I’ve worked in print and online. Above all else, it’s a question of honesty.

    What I really want to point out is that if the FTC gives a lick about what bloggers are and are not doing, this means that we have really become a medium to be reckoned with. We can either go forth as new media professionals and behave in a professional manner, or prepare yourself for the consequences. I say we actively associate ourselves with bloggers who are professional and ethical. I know I will.
    .-= Sandra´s last blog ..TodaysVintage.com :: Living La Vida Vintage =-.

  12. Sarah

    “In the mail today I received…” is not really good enough. I receive plenty of stuff in the mail, but it is all stuff I have ordered and paid for myself. Respectfully, I think you should make it more clear, law or no law. At any rate, I have seen this language on fashion blogs often, and I had no idea until reading this post, that that was code for “I was sent this for free.” Conversely, the reference to samples does seem clear.

    I stopped buying magazines as soon as I found out that the writers receive free samples and thankyou gifts for their write-ups. It seems even worse if ostensibly independent, individual, unpaid bloggers fail to disclose such conflicts of interest, because readers are indeed more likely to think their glowing reviews genuine. Of course they may well be genuine, in which case, why not make the disclosure anyway? If you don’t have an agenda (i.e., trying to keep gift givers sweet) what is the problem with disclosing?

  13. Leproust

    Thank you so much for this post! It is a great resource. I remember scanning it a few weeks ago, and after receiving my first free samples via mail, I searched for this post again to double-check myself!

  14. GG

    I agree, it’s very important to indicate where you have received products from companies to review. Blogs by nature endorse or dismiss trends and their readership follow suit. Great article!