Iam in my hometown of Washington, DC today, attending and speaking at Blogging While Brown. Stacey Ferguson (pictured with me below), an attorney with the Federal Trade Commission (FTC), addressed conference attendees about the the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising, which regulates bloggers and people who blog. (I mention “bloggers” and “people who blog” separately because not everyone who blogs describes themselves as a “blogger.”) The Guidelines apply not only to people with blogs, but also to people who use any kind of digital media, including FaceBook, Twitter, etc., to publish information.
A full overview of the FTC Guidelines is beyond the scope of this post, but for those who don't know, they require that your posts disclose your material relationships with the companies and products you talk about in your posts. You can read my detailed commentary on the Guidelines here. Until today, I had never spoken to an FTC official about the Guidelines. I learned a lot from Stacey, and of course, I want to share it with you.*
The Guidelines regulate commercial speech, not private speech. Stacey pointed out that the Guidelines arise from the FTC's authority under Section 5 of the Federal Trade Commission Act, which prohibits unfair or deceptive practices. The Guidelines are designed to protect consumers from being unduly influenced when they are not fully informed about the materials facts behind that influence. For example, when you publish a blog post, FaceBook update or Tweet about a product or service, and you have been compensated in any way for that publication, you must disclose that fact to your audience. If you do not, you are in potential violation of Section 5 of the FTC Act.
Compensation comes in many forms. It can be a free product or even a discount on a product. It can be a swapped blog post or an hour of free consultation. Whatever it is, it must be disclosed to the people reading, seeing or hearing it.
Posting a general disclosure policy at your blog is not enough. Stacey said that material facts must be disclosed within the post itself. It is not enough to have a general “FTC Disclosure Policy” at your blog if you do not also disclose material facts within the post itself. While Stacey did not give specific examples of this, here's an example of what I think she means.
This post links to a book you can buy through my Amazon affiliate link. Notice how, even though I have disclosure policies at my blog, and even though most people would figure out that the link goes to an Amazon affiliate link, I disclosed the affiliate relationship within the post itself.
Even though Twitter and FaceBook limit posting space, Stacey said we still must make the appropriate disclosure. Here's an example of how I have done this. She suggested saving space by using a hashtag. My Twitter profile bio indicates that “sponsored = #sp” so everyone reading can tell if one of my Tweets is sponsored. (I now use “#sp” instead of “sponsored” to save valuable Twitter characters.).
“We aren't concerned with individual bloggers.” Stacey said that the bottom line is that, if you are paid in any way for a post, it must be disclosed. She also said, “We aren't concerned with individual bloggers.”
During the Q&A session, I asked Stacey to clarify what that means. I told her that, since the federal government's policies should be carefully tailored to accomplish specific goals without adversely affecting citizens's rights, I thought it was unfair to say that the FTC is not concerned with individual bloggers, yet apply the Guidelines to them. She expressed her opinion that “Suzy Public” could be more dangerous than a big company when it comes to not disclosing material facts.
As I'm sure you know, I disagree with that, and I told her so. In any event, the way the Guidelines exist now, they apply to individual bloggers, even though the FTC is not “concerned” with them.
I feel strongly that this is not good policy. It's difficult to plan a business (which these days must also include planning a blog) without knowing in advance, and specifically, how different laws, rules and guidelines will affect your business. We agreed to disagree on this issue, but judging from the applause my remarks drew, many others share my concerns.
It's Not Rocket Science, But …
It is not difficult to comply with the FTC's Guidelines. In fact, I have always disclosed when I am blogging or sharing sponsored content. I have not always done it as specifically as the FTC Guidelines say I should, so I am making a few changes in that regard.
Having said that, I have always been disturbed by these Guidelines because they seem to unnecessarily infringe on the flexibility small businesses need to thrive, and because they come dangerously close to violating the First Amendment to the United States Constitution. I also believe they open the door to regulations that are more difficult to comply with, and which are not carefully tailored to truly protect consumers.
Question: What do you think of the FTC Guidelines? Do the examples and tips here help you abide by them?
*Stacey appeared today in place of a higher level FTC employee who had originally committed to to attend. Stacey said that her remarks were her own, and not necessarily representative of the position of the FTC.