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The FTC has released its changes to the 1980 Guidelines on advertising and endorsement and some of those changes involve considering Blog Posts to potentially, on a case by case basis, fall under the scope of the Guidelines on deceptive advertising.
The question the FTC considers is this:
In analyzing statements made via these new media, the fundamental question is whether, viewed objectively, the relationship between the advertiser and the speaker is such that the speaker’s statement can be considered “sponsored” by the advertiser and therefore an “advertising message.”
Many blogs review products, make statements like “Yay Pepsi” or “Home Depot sucks”, and even get paid to advertise products. Not every instance of a mention of a product will doom the blog to the hell of Guidelines regulation.
The facts and circumstances that will determine the answer to this question are extremely varied and cannot be fully enumerated here, but would include: whether the speaker is compensated by the advertiser or its agent; whether the product or service in question was provided for free by the advertiser; the terms of any agreement; the length of the relationship; the previous receipt of products or services from the same or similar advertisers, or the likelihood of future receipt of such products or services; and the value of the items or services received.
So the first thing the FTC will consider is whether or not a post is “sponsored”, and to do this it will look at things like the history of free products received, the history of the relationship between a blogger and a company, and whether the blogger has been compensated by the company. It is not clear whether or not the product itself is considered compensation, but that doesn’t matter since the receipt of free product itself is one of the things the FTC will look at in order to determine if a blog post is sponsored.
Presumably this doesn’t mean that if you are a review blogger and you receive products to review at no cost to yourself that your blog posts are “sponsored” in the relevant sense. But it also isn’t clear that this is not the case. Because the receipt of products is spelled out separately from compensation it could be interpreted either way. And, with the FTC proceeding on a case by case basis what is considered “sponsorship” on one blog may end up being considered fair content on another.
Paid posts will certainly be considered sponsored. Posts that discuss a product purchased with the blogger’s own money or otherwise not provided directly or indirectly at the cost of the company will certainly not be considered sponsored. It’s the middle ground that gets messy for evaluative purposes, and the FTC has not provided an easy way to tell whether you yourself are going to end up falling under the Guidelines unless you are getting paid to post. They want to see individual cases.
In a spasm of un-speak, the FTC says:
Even if that consumer receives a single, unsolicited item from one manufacturer and writes positively about it on a personal blog or on a public message board, the review is not likely to be deemed an endorsement, given the absence of a course of dealing with that advertiser (or others) that would suggest that the consumer is disseminating a “sponsored” advertising message.
This is not to say that use of a personal blog means that the statements made therein would necessarily be deemed outside the scope of the Guides; the Commission would have to consider the rest of the indicia set forth above to determine if the speaker was essentially “sponsored” by the advertiser.
This is a long way of saying “don’t feel too worried about receiving and reviewing that single product….but don’t feel too relaxed about it either. We’ll look into it and let you know if we think it constituted sponsorship.”
Further muddling the issue is the value question: the FTC thinks that the value of the product being offered for review is evidence to be used in determining whether or not the post was sponsored. But bloggers have a wide range of prices for their souls: some will sell out for laundry detergent, while others hold out for family vacations. Both bloggers may have been influenced to write a review, and a complimentary one (the issue the FTC hopes to address by
