Testimonials and Endorsements Subject of New FTC Guide

At October 5, the FTC announced that starting December 1, 2009, a new set of rules for testimonials and endorsement for bloggers will be in place.

It’s their intention to protect potential buyers by disclosing the relationship between advertiser and endorsers, specifically on blogs.

While the FTC explicitly states that…

The Guides are administrative interpretations of the law intended to help advertisers comply with the Federal Trade Commission Act; they are not binding law themselves.

…it would be very wise to follow the guidelines to prevent yourself from getting into troubles.

If you think that’s complete nonsense and nothing like that can happen to you, or if you’re interested in knowing how it feels to be sued by the FTC, then read this blog post by Frank Kern:

Frank Kern FTC

As you can see, Frank didn’t expect to be sued either. But it happened!
And when this happens to you, you’re toast!

While you’re there, also read Frank’s advice about these new guidelines mentioned above:
New FTC Thing Is A Bigger Deal Than You Might Think.

Thanks to my friend Joel Bomane from Marseille, France, for both links.

Marseille
Image via Wikipedia

And another great friend of mine, Dr. Mani, pointed me to a blog post published by lawyer Whitney Hoffman, who, wise as he is, begins his post with:

…read from my viewpoint as an attorney, albeit one who does not currently practice in this field professionally.

And that’s were my main problem lies with these guides.

They’re too ambiguous.
In this new Final Guides Governing Endorsements, Testimonials they try to protect innocent users seeing specific results mentioned in testimonials and endorsement as ‘typical’.

But if, in Frank’s weight loss example, Annie says she’s lost 950 pounds and Jenny would mention a loss of only 150 pounds, what result would be ‘typical’?

You just don’t know and one other thing…

I don’t know how many Ex FTC Lawyers you can consult.
I don’t know one of them. And IF I knew one, would his advise prevent me from going wrong? I doubt it.

Fortunately, Whitney gives us some great examples of good disclosures.

My guess is that more examples will be available soon, so keep an eye on the topic.

Finally, I also found a post about FTC Fake Bait & Disclosure by Andy Beard. It seems he has an old WordPress disclosure plugin that shows a (short) disclaimer for certain keywords. It’s contextual and I don’t know how it exactly works, but Andy asks if there’s enough interest in using this plugin.
Check it out and if you’re interested, write a comment.
If there are enough people interested, Andy may update the plugin.
Could be useful.

Oh, almost forgot:
Don’t take anything in this post (or anywhere else) as legal advice. I’m not a qualified legal advisor! Just expressing my opinion for your entertainment.

Related articles
What You Don’t Know About The New FTC Rules On Disclosure
Is This The End of Affiliate Marketing?
FTC Values Sponsored Conversations at $11,000 Apiece.
Websites And Law Across Borders (FTC versus EU)
Regulations Advertisers in USA and EU Should Know About




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18 thoughts on “Testimonials and Endorsements Subject of New FTC Guide

  1. Andy Beard says:

    As an affiliate this is a golden opportunity to just offer a bonus for everything or slap in some adsense on a review and make money from those offing bonuses.

    • Case Stevens says:

      @Andy
      LOL. Clickbank won’t be happy with your bonus idea!

      • Andy Beard says:

        Actually Clickbank have no problems with bonuses as long as people stick to the rules set, which aren’t always easy to find.
        Discounts/rebates are out
        You have to make it clear that the bonus is your responsibility not Clickbank or vendor.
        Deliver bonuses within stipulated times (automate it makes sense)

  2. Bohol says:

    It’s a waste of people’s money. Will they be checking every blog post in the Internet and investigate whether this comment, that comment is paid or not? How would they know that an article was a paid review?

    • Case Stevens says:

      @Bohol
      Yes, decisions will be reached on a case-by-case basis.
      That means that chances of getting caught are minimal, but IF you are subject to investigation, you won’t be happy with that, whatever the outcome.

  3. Search Engine Marketing Specialists says:

    I think it’s an interesting direction… There are many unscrupulous internet marketers around that could do with some reigning in, but as usual it will hurt thousands more legit folk that are trying to put food on the table. It’s also a really difficult thing to police, but perhaps they are going to go after higher-visibility IMs to ‘make an example’.

    I see Matt Cutts has put up a disclosure post at http://www.mattcutts.com/blog/disclosure/ stating his affiliations and so on, a pro-active approach that is probably a good idea for all of us to consider.

    Being in Canada, I’m wondering how long it will take for local lawmakers to do a similar thing – with most things they kind of follow on the example set by US lawmakers, it’s just a matter of when.

    – Dave the Brave

  4. Green Mountain says:

    It is very difficult to know whose comment is paid. And all people also don’t have knowledge for these things.

  5. SEO wizz says:

    It is a bit of a pain and I question the effectiveness of the guidelines, but let’s face it, all it takes is adding a disclaimer link to the top of your page or at the end of every post, not really a big deal.

    Tim

    • Case Stevens says:

      @Tim
      No, it’s not that easy! If you’re an affiliate, you have to disclose any relationship with the vendor. Same applies if you’re doing paid reviews or getting free review copies.
      As for testimonials and endorsements, you can’t get away with the term ‘results are not typical’, certainly not within a disclaimer or TOS page. You have to explicitly mention what results ARE typical!
      How would you do that?
      Read Michael Fortin’s post: Is This The End of Affiliate Marketing?

  6. We will learn to live with it.

    Considering the upcoming holidays, this changes come with a fairly short notice. Some markets enjoy their best revenues at the end of the year. It’s not really a good season to fiddle with proven copy and to change sales letters and autoresponders, … I mean downgrade them from “here are my best results” to “NOT SO EXCITING”.

    How will consumers react? They have been trained to expect too much, and get little in many markets. Most of them adapted; only a minority ran off to the FTC and complained.

    Will copy about “averages” pull as well? Likely not. A new approach is needed. Moving from “results” to “experience”.

    This kind of stimulus package certainly works for copywriters and lawyers. Well, done.

    Yours
    John W. Furst

    Disclaimer: I only had 1 cup of coffee today, therefore, I am not sure if I make sense. Let’s call it a joke to be on the safe side. (No medical, financial, legal, advice. Consult a professional of your choice.)
    BTW: Nobody has or will pay me for writing a comment here. (It’s a shame I know.)

  7. Johnny says:

    Well now it would seem that you have to add more BS to your disclaimer thanks to the FTC.

    Anyway, the FTC will probably start to hunt down the big guys, well known infoproduct creators, not people with small businesses.

    I’m from europe and I’m more of an affiliate rather than a product creator, so no, this won’t affect me personally. It’s not fair for the other people though..

    Best regards
    Johnny

    • Andy Beard says:

      Johnny,

      Seems like you might do some stuff in the weight loss niche, which is business to consumer.

      In such a situation you would want to be running a Limited company just for financial security, and then if you have websites as a Ltd company you need to have full business details easily visible.

      I am not a lawyer… but you probably need one.

    • Case Stevens says:

      Of course it’s your call Johnny, but you may want to read that guide again.
      Oh, and for activities in Europe, read John Furst’s article Regulations Advertisers in USA and EU Should Know About. Europe is even worse!

  8. Sarah says:

    Ugh guidelines make everything more complicated.. Thanks for posting about it, I doubt I would’ve found out otherwise. I’m going to check out that plugin you mentioned, seeing as I’m probably going to need it by December!

  9. Does this mean that any testimonials that DON’T mention earnings will be allowed?

    My best (off the cuff) guess is that 80-90% of testimonials don’t mention actual amounts.

    If we remove T’s with earning figures the rest might be fine.

    Obviously a test case / legal ruling is needed on this but it’s interesting…..

    Tony Shepherd

  10. Mentors 4 U says:

    Any time the FTC is mentioned it naturally becomes a nerve wracking situation. However, educating ourselves on the stipulations and laws is the best choice. If we turn our head to these warnings that is when problems could stem from

    Just gather as much info on the regulations as you can and implement them into your affiliate or small business. All will be good in a few months

    Megan

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