On December 1, 2010, the Federal Trade Commission (FTC) promulgated new guidelines governing endorsements and testimonials.  Although the guidelines — being just “guidelines” — do not have the force of law,  they do provide insight on how the FTC will interpret the law.  The guidelines cover endorsements by bloggers, consumers, experts, and organizations.  Let’s look at what the guidelines say about blogging.

First, here are the general guidelines.  Endorsements consist of any “advertising message…that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser…”  Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser.   They may not be quoted out of context or reworded in a manner that “distorts” the original endorsement.  If an advertisement states that an endorser uses the product or service, the endorser must have been a “bona fide” user at the time of the endorsement and the advertisement may only run during the period of  the endorser’s “bona fide” use.  Both advertisers and endorsers may be liable for their statements.

Here’s what the FTC has to say about bloggers. Product endorsements based upon a blogger’s own experience with a product is not an endorsement under the Guidelines; however, if a blogger receives payment, he or she must disclose it.

If a blogger endorses a product received from an advertising service and makes unsolicited statements about its effectiveness, the advertiser and the blogger will be subject to liability for making misleading and unsubstantiated claims.  Furthermore, the blogger will be liable if  the blogger does not disclose that he or she is being compensated.  The guidelines explicitly imposes a duty on the advertiser to monitor a bloggers’ compliance.

The FTC also requires bloggers who review products received for free from manufacturers to disclose their connection with the manufacturer.  As in the previous example, the FTC imposes a duty upon the manufacturer to insure that bloggers comply with the guidelines.

Bloggers and advertisers should familiarize themselves with the new guidelines and should there be questions about their interpretation, we are always available for consultation.

–Adam G. Garson, Esq.