New FTC Guidelines affecting bloggers (and endorsements) went into effect today: http://bit.ly/1TGHnK & http://bit.ly/m5jLP. As such, I have some BIG questions about brands, brand tools, bloggers, and micro-bloggers and how they’re going to work together and avoid any potential liability. (I’m pretty sure the consumer will be protected in most cases.)
From the FTC Guide, Example 8: A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog’s fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides.
Assume that rather than purchase the dog food with her own money, the consumer gets it for free because the store routinely tracks her purchases and its computer has generated a coupon for a free trial bag of this new brand. Again, her posting would not be deemed an endorsement under the Guides.
Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides. <end>
The FTC states “Consumer endorsements themselves are not competent and reliable scientific evidence.” Conversely, based on the above example, someone who has received the product for free and endorses it is. I read the above example to say that if they received anything and blogged about it (as we trust everyone we read on the web), they’re now a product endorser. Simple enough.
That begs the question: Can they get sued?
Do the recipients of giveaways (tsotchkes) have to be recorded? Just in case they turn into product endorsers? From my read, bloggers regardless of the media type (a full blog, a micro-blog) should ask the brand they’re endorsing about disclosures or be supremely confident in their endorsement and the brand itself has a duty to the endorser to provide training about the product and allowable claims.
What should companies like Bzzagent.com or other recommendation service/ aggregators do with respect to these guidelines?
(I hope they might interpret them as having a duty to protect the consumer by working with the brand to ensure there is adequate product disclosure. That disclosure might come in the form of statements about endorsements, who is endorsing, who is the advertiser, the methods used to obtain the endorsement as well as the company’s facts behind allowable claims. There is a good dialog about the guidelines as they relate to 47 USC 230 by Eric Goldman. On a practical note, I believe it just means asking the brand for the location of the information and pointing endorsers and consumers in that direction.)
In essence, brands must engage and act on behalf of their consumers er… soon to be endorsers by acting responsibly and on behalf of both their consumers and endorsers. I believe that the broad majority do.
To close, while I am not an attorney (lol … and these representations reflect my personal conclusions and not those of 3 Big Heads), I take these guidelines as a call to action for increased awareness by both the blogger and the brand as well as a big step by the FTC to protect the consumer. The challenge is this: While some may view this as a big win for consumers, the potential for liability just got a little bit bigger for a great many of us.
