The controversy last week surrounding Lord & Taylor’s blogger campaign made one thing clear: The rules surrounding disclosure for bloggers are a lot more complicated than simply adding a disclaimer on a blog post.
A quick recap: the department store paid 50 bloggers to post photos of themselves wearing the same paisley dress on their social media channels and blogs. But many of the bloggers didn't disclose that it was a paid campaign (many have since added #ad or #sponsored). So what do the FTC rules actually require? Yes, you can read the FTC’s Dot Com Disclosure Rules beginning to end, but there are a lot of gray areas that aren’t discussed explicitly—especially within the realm of social media.
For example, the FTC insists on “clear and conspicuous” disclosure, but its direction on how to do that is frustratingly vague:
There is no set formula for a clear and conspicuous disclosure; it depends on the information that must be provided and the nature of the advertisement.
Although the FTC rule book includes examples of scenarios where disclosure may be necessary, issues such as placement, size, and location are all very subjective based on each individual advertisement’s circumstances.
Needless to say, the rules can be very confusing to bloggers, new and experienced alike.
So I dug through the rules and came up with several examples of those murkier, “gray areas” within the FTC’s guidelines, and an interpretation of whether disclosure is necessary:
1. A brand pays you for a sponsored blog post, and you are sharing your post your social media channels.
The Dot Com Disclosure Rules address this issue by stating that disclosures must be made “clearly and conspicuously in each advertisement that would require a disclosure if viewed in isolation.”
If you are paid for a sponsored post on your blog, and later promote your post on your social media channels, you must include disclosure that the post you’re linking to, or (in the case of Instagram) the image your sharing was in some way sponsored.
According to the FTC, the content being shared is an advertisement and should be treated as so—even if it’s an excerpt or teaser on social media.
Since it’s safe to assume that not every single individual who views your post will click on the link to your blog, your disclosure needs to be in a clear, visible place on every platform where you share your content.
However, the language in which you choose to promote it can be more natural than “Sponsored Post.” You can say “Check out my new post, brought to you by X Brand” or “X Brand and I worked on this new post together.”
2. As a part of your partnership with a brand, you are expected to Tweet or Instagram a specific number of times.
Similar to the first scenario, if any exchange occurred (whether monetary or “in kind”) between you and the brand, a disclosure must be included on those social media posts as well as the blog post they promote.
If sharing on social media is a part of the agreement, (i.e. the Lord & Taylor Instagram posts) each post on each platform must include some form of disclosure.
This disclosure must be within “proximity” of the ad, meaning that it must live on the actual ad rather than within a hyperlink, as well as in language that is “understandable to the intended audience.” For example, the FTC suggests using the hashtags “#Ad” or “#Sponsored,” but not #Spons because a viewer may not understand that “#Spons” implies sponsored.
The following circumstances are included within this scenario:
3. A brand takes you on an all-expenses-paid trip and you share the trip on social media.
This scenario is tricky. I’m sure Oprah doesn’t have to announce every time her meal is comped—but, according to the FTC, “Dot Com” businesses have to disclose when they share freebies.
For instance, if a brand hosts a dinner at a trendy restaurant and you share multiple photos, the FTC considers this as being “paid in kind.” Instead of money, you are essentially being given food as “payment.”
If you choose to share the event over social media, you are essentially “endorsing” the brand since you liked their event enough to share it— which in the eyes of the FTC counts as an advertisement.
In this case you don’t have to include #Sponsored or #Ad on your post, but to err on the safe side it might be best to say something along the lines of, “Thank you, X Brand, for the lovely monogrammed macarons!” so it’s clear to your followers that the experience was comped.
4. You are given a discount for an expensive item and want to share it on your blog or social media.
If a brand gives you a 50 percent discount on their items or services, you do not have to disclose that discount since you are using your own money to purchase the item.
However, it's unclear whether disclosure is necessary when a brand offers you a discount in return for a post. I have reached out to the FTC for clarification regarding this issue, but the agency has not yet responded. We will keep you posted.
5. You include affiliate links within your blog posts, or social media posts
This one actually may come as a surprise to many bloggers, but according to the FTC, you must include a disclaimer on every individual post that features an affiliate link.
Having a disclaimer in your Terms & Conditions announcing that your blog uses affiliate links is no longer sufficient. According to the FTC, it's not within close enough proximity to the affiliate link.
The proximity guideline also applies to the appearance of disclosures on all devices. Since many mobile optimized layouts place the side bar at the bottom of the page, having a disclosure that lives in the side bar is not sufficient since it requires visitors to scroll all the way down to see your disclosure.
The easiest way to make sure you’re covered is to always include a statement such as: “This post contains affiliate links, meaning I may earn a commission off of any item purchased.”
This rule extends to social media posts that include affiliate links as well, but the FTC doesn’t give specific guidelines here. I would guess that the hashtag “#Affiliate” would work, but it's always best to check with a lawyer.
When in doubt, it’s always best to be on the safe side and disclose. After all, the FTC’s guidelines are set in place to make sure that we maintain a transparent, and honest relationship with our readers.
The above scenarios and the actions depicted are general information, and are not intended to take the place of legal counsel. If you have questions pertaining to your specific circumstances, always ask a lawyer.
[Photo via The Grey]