DO NEW FTC GUIDELINES PUT YOU IN THE SAME BOAT AS BROOKE SHIELDS?

by Bonnie Boots

Brooke Shields is on my TV telling me that using a new prescription product has made her eyelashes thicker and fuller. It may seem like the same old commercial blah-blah-blah, but something new has been added.

Below the video image of Brooke Shields is a text line reading, "Compensated spokesperson describing personal experience."

This text line has been introduced to bring the commercial into compliance with FTC guidelines for product endorsements.

If you're in the U.S. and selling anything on the internet, chances are you've already read some hysterical emails and blog posts about the FTC.

New guidelines from the Federal Trade Commission require disclosure in any situation where endorsements are used to promote goods, products or services. And with some endorsements, such as those for weight loss products, the FTC rules now require disclosures of "typical results."

The announcement of new guidelines was barely noticed in mainstream marketing like TV and radio, where advertisers are accustomed to complying with the FTC guidelines on deceptive practices.

But on the internt, especially among new and naïve marketers, a blizzard of blog posts have made it sound like the FTC will be goose-stepping down the information highway, arresting miscreants and throwing them into prison.

So let's lower the level of hype and outline what the FTC has really said.

The clearest interpretation comes from Mary Engle, associate director for advertising practices at the FTC's Bureau of Consumer Protection, whose conference call addressing FTC changes was quoted in The Blog of Legal Times.

"We are not going to be patrolling the blogosphere," Engle stated. "We are not planning on investigating individual bloggers."

Engle explained that bloggers who are paid per blog or tweet to market a product need to disclose that information, adding, however, "The primary responsibility falls upon the advertiser using the blogger to market the product…. Our focus is on the advertiser, not the individual endorser."

Engle stressed that the FTC lays down guidelines, not "rules," as so many bloggers have stated.

"They are not rules and regulations, and they don't have the force of law," Engle said.. "They are guidelines intended to help advertisers comply with Section 5 of the FTC Act," which covers unfair or deceptive practices.

The FTC's goal is to make it easier for consumers to tell when an endorsement is merely a paid performance. Much of the their intention was to crack down on over-hyped ads where paid performers make claims for miraculous results.

The revised guide expands on and aims to clarify guidelines on product endorsements by experts, celebrities and organizations as well as consumers, and to disclose connections between endorsers and products.

In plain English, the FTC wants consumers to know that the person they're listening to, where it's Brooke Shields or Dr. Weight Loss Specialist, is connected to and compensated by the product being endorsed.

While the guidelines are not laws, the FTC has always had the ability to sue an advertiser for deceptive practices under the FTC Act. But Engle said the agency has "never brought a case against an individual consumer endorser."

Nor will the FTC levy fines for violating the guidelines.
When it comes to making law enforcement decisions, however, she said the FTC would go after the cases that are black and white. "We're not interested in playing gotcha in the gray areas."

Bloging, still a new media, is very much a gray area and  Engle used the example of a blogger that occasionally receives a free sample and happens to write something positive about the product to illustrate endorsements the FTC is NOT interested in.

The occasional freebie is not, Engle explained, "something we think would change the expectation of the audience."

But she cautioned that if, at some point, it became a steady stream of freebies, then disclosure would be called for.

Following the FTC guidleines is"not burdensome and it's not hard," Engle said.

To sum them up: 

· The new FTC guidelines are just that: "They are not rules and regulations and they don't have the force of law."
· The FTC isn't gunning for bloggers. "Our focus is on the advertiser, not the individual endorser."
· The FTC, "has never brought a case against an individual consumer endorser."
· The FTC's concern is with black + white cases of deceptive or unfair practices: "We're not interested in playing gotcha in the gray areas."

So if you, like most of my subscribers, are an author, consultant, self-employed professional or other entrepreneur using the internet as one of many marketing channels, you needn't listen for jackboots in the night. The FTC isn't concerned with you.

If you're someone working to make extra income with a couple of blogs or sites, it's probably just good business practice to add a general disclaimer  stating you are compensated for some endorsements.

If, on the other hand, your business involves running hundred of blogs, posting phony endorsements for weight loss products (such as the one I dissected in this article, The Truth About Marcia's Weight Loss Blog) then you need to be in compliance with the new FTC guidelines, because your deception probably looks pretty black and white to the FTC. 

DISCLAIMER: I am not a lawyer, nor do I play one on TV. The article presented here should not be construed as legal advice.

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