By Lesley Fair

These days not many people drive Gremlins, sport parachute pants, or gather around the water cooler to debate who shot J.R. Ewing.  They still buy cars, follow fashion trends, and watch what’s hot in entertainment, but their interests reflect changing times.  That’s why the Federal Trade Commission (FTC) – after substantial public comment – revised its Endorsement Guides to reflect changes in marketing and media since the Guides were issued in 1980.

For the most part, the legal principles remain the same:  Endorsements must reflect the honest opinions or experience of the endorser.  An endorsement may not convey to consumers an express or implied claim that would be deceptive if made directly by the advertiser.  And any connection between the endorser and the seller of the product that might affect the weight or credibility of the endorsement must be fully disclosed.  But many marketers have asked how these established principles apply in new social media.  Here are some of the questions posed to the FTC.

• Why does the FTC care about endorsements in social media?  Because consumers depend on truthful information about the products they’re thinking about buying, whether they get it from TV spots, infomercials, websites, or viral marketing campaigns using social media.  That’s really what the Guides are all about:  Giving people the facts they need so they can decide for themselves how to weigh endorsements.
• Is it true that every time bloggers mention a product they have to disclose whether they got it for free or paid for it themselves?  No.  If bloggers talk about products they bought themselves, the Guides don’t come into play at all.  They cover only endorsements that are essentially part of an advertiser’s overall marketing campaign.  For example, if an advertiser pays a blogger to tout a product, the Guides would apply. Likewise, bloggers who get free products or other perks with the understanding that they’ll promote the advertiser’s products in their blogs generally would be covered, as would bloggers who are part of network marketing programs.  Here’s the bottom line:  If there’s a relationship between a blogger and an advertiser that would affect the credibility of the review in the eyes of consumers, the relationship should be clearly disclosed.
• Is there special language that has to be used to make this disclosure?  No, the point is simply to give consumers the information they need to decide how much weight to give the review.  It could be as simple as “Company X gave me this product to try and . . . .” 
• Is the FTC planning to fine bloggers if they violate the Endorsement Guides?No.  Civil penalties cannot be imposed for violations of an FTC Guide.  The goal is to encourage voluntary compliance.  If law enforcement becomes necessary, the focus will be advertisers – not bloggers – just as it’s always been. 

Lesley Fair is an attorney with the FTC’s Bureau of Consumer Protection.