There’s nothing like poring over a heavily-footnoted article in the New York Bar Association newsletter. Several times.
What does this have to do with food writing? Glad you asked.
Food writer Rebecca Lang, whose husband is an attorney, sent me an article he gave her called, “The FTC’s Revised Endorsement Guides Impact How Companies Can Advertise Through Social Media.” It outlines endorsement guidelines for bloggers from the Federal Trade Commission (FTC).
I’m so glad she did, because I had not seen this interpretation on accepting goods, money, or affiliations (where you get a percentage of sales) in exchange for a post, mention or a link. It’s good timing for food bloggers who want to “monetize” their blogs, a growing concern according to a recent Foodista survey.
I wrote my original post on disclosure in 2009, but back then the rules were rather vague. Now lawyer Laura Sack has written about the updated FTC guidelines, which make sense as best practices. So if you’re a blogger who writes reviews, participates in an affiliate program, or gets paid to mention a product, here’s what it says:
1. The FTC can fine both the blogger and the company for not disclosing an arrangement where the company compensates the blogger for a review, positive mention, or sponsored post. Wouldn’t that be a bummer, to not mention your arrangement in the post and then find it costs you a new client? So not worth it.
First, let’s define an “arrangement.” According to the FTC, compensation happens when you:
- Receive a free product and review it
- Link to the product’s website and receive a commission (called an affiliate program)
- Receive money, product or services for posting about a product
- Review a product or service that comes from an advertiser on your site.
The FTC does not require you to disclose the relationship if you:
- Use a coupon for a more expensive brand of a company’s product than what you would normally buy, and blog about the product
- Review products from a swag bag at a conference.
2. The definition of “disclosure” is more specific. It’s not enough to make a general disclosure on your About page anymore. The discloser must be contained in the post itself. “So long as the disclosure clearly and conspicuously conveys to the reader the relationship between the blogger and the advertiser, the disclosure will be adequate,” states the article. That means you can write something as simple as, “Company ABC gave me this product to review” and you’re done.
And, it’s not enough to disclose the relationship just on your blog post. If you tweet about your post, or you tweet about a product for which you have been compensated, Sack suggests you add #paid ad, #paid or #ad at the end. I can’t say as I’ve seen any of those monikers yet, including during presentations at IACP from marketers who want to work with food bloggers. I have seen #spon, though.
This disclosure rule affects me as well. From now on, whenever I post about a book and include a link to Amazon, I have to disclose the relationship right there. On one hand, I think, “Doesn’t everyone know how this works?” and “Who cares if I make 26 cents if someone buys a copy?” But on the other hand, it’s best to just be transparent about it.
3. Even if you satisfy the requirements of numbers 1 and 2, you and the company could still be fined if your post contains “misleading or unsubstantiated representations.” This seems like common sense, but apparently it isn’t. Here are the main points:
- Don’t write about a product if you haven’t tried it
- If you were paid to try it and you thought it was terrible, you can’t say it was great
- You can’t make claims about a product (“It will cure cancer!”) that cannot be substantiated.
To protect yourself, work with companies that know the rules and help you follow them. Companies should require you to sign a contract that includes suggested language about disclosure. These companies should also check your blog and tweets to see if you are following the FTC guidelines. Doing so is in their best interests as well as yours.
If you’re wondering whether the FTC takes action on this issue, the answer is yes. The article cites a settlement of $250,000 by Legacy Learning, which created an affiliate program endorsed by bloggers who did not disclose that they were compensated. Anne Taylor also took some heat for issuing gift cards to bloggers and not requiring them to disclose the gifts. On the other hand, the FTC is not monitoring blogs and has no plans to do so. It also has no direct authority to fine. But if possible violations come to their attention, they will investigate. It’s best to just do the right thing to begin with.
For more on this subject, read:
- The FTC’s Endorsement Guides: What People Are Asking
- Guidelines Concerning the Use of Endorsements and Testimonials in Advertising
What do you think of these new rules? From my standpoint, it might feel uncomfortable, but it’s important to be transparent to readers. If you’re not being clear with them, you’re creating an even bigger problem.
(As long as we’re on the subject…Disclosure: Rebecca Lang once hired me to coach her on a book proposal.)