Standard disclaimer: none of the advice in this or any other blog post I make, is intended as, nor should it be construed to be, legal advice. If you need legal advice, consult a lawyer or law firm that specializes in the legal field you need legal advice on.
NOTE: This applies if you have a blog, a website, post an affiliate or endorsement link on Facebook, Twitter, Instagram, YouTube, etc. Don’t be surprised if you ignore FTC guidelines and they fine you.
Some of you may think I’m beating a dead horse on this issue. I’m not. I am trying to get more bloggers and website owners to realize what the Federal Trade Commission (FTC) has said repeatedly about not clearly marking affiliate links and other forms of paid endorsement, including those who receive free items to review. Some of the worst offenders fall into several categories: DNA, especially genealogical DNA, genealogists, writers, reviewers, and those individuals who frequently include affiliate links in their blogs or on their websites. If anything, it’s getting worse as more bloggers, vloggers, and website owners join the ranks.
What I am trying to do is to convince some of you to understand what can happen to you if ignore the FTC. This applies to anybody outside the United States that includes readers or visitors who are American citizens since you being a non-U.S. citizen doesn’t protect you from being hit with fines from the FTC.
Strangely, the worst offenders tend to be those who claim to be in compliance with the FTC‘s guidelines. Most of them include a link to the FTC guidelines. Yet, they totally ignore the guidelines. That pretty much assures the FTC will come down harder on them than if they were ignorant of the guidelines. The FTC would still hit you with fines if you weren’t aware of the guidelines, but they would most likely be somewhat kinder than when you blatantly ignore the FTC guidelines that you linked on your blog or website.
I will include the relevant portions of my earlier blogs below the links to them so you don’t need to click on the links.
Here are several FTC links that should clearly explain how to use affiliate links and other endorsements in ways that fall within the FTC guidelines:
https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#how (FTC website, kind of a FAQs)*
https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf(PDF, so you will need a PDF reader to view it).
The #1 thing that most bloggers and website owners ignore is one of the worst offenses. Making it sound like you only make a small amount of money from affiliate links when you are making substantial amounts from the links. For example, some of the DNA companies pay 5 – 10%/test purchased using your affiliate links. Often, it’s 10% if your link generate $1,000+/month in sold tests. At least a couple of well-known bloggers generate sizeable income ($1,000+/month in affiliate income), but don’t disclose it, choosing to go with “small amount” or maybe a small percentage. That’s misleading at best. If you average $1,000/month in income from selling whatever, best to disclose it than for people to assume otherwise.
*Probably some of the most important things to consider:
The Guides say that disclosures have to be clear and conspicuous. What does that mean?
To make a disclosure “clear and conspicuous,” advertisers should use plain and unambiguous language and make the disclosure stand out. Consumers should be able to notice the disclosure easily. They should not have to look for it. In general, disclosures should be:
- close to the claims to which they relate;
- in a font that is easy to read;
- in a shade that stands out against the background;
- for video ads, on the screen long enough to be noticed, read, and understood;
- for audio disclosures, read at a cadence that is easy for consumers to follow and in words consumers will understand.
A disclosure that is made in both audio and video is more likely to be noticed by consumers. Disclosures should not be hidden or buried in footnotes, in blocks of text people are not likely to read, or in hyperlinks. If disclosures are hard to find, tough to understand, fleeting, or buried in unrelated details, or if other elements in the ad or message obscure or distract from the disclosures, they don’t meet the “clear and conspicuous” standard. With respect to online disclosures, FTC staff has issued a guidance document, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” which is available on ftc.gov.
Where in my blog should I disclose that my review is sponsored by a marketer? I’ve seen some say it at the top and others at the bottom. Does it matter?
Yes, it matters. A disclosure should be placed where it easily catches consumers’ attention and is difficult to miss. Consumers may miss a disclosure at the bottom of a blog or the bottom of a page. A disclosure at the very top of the page, outside of the blog, might also be overlooked by consumers. A disclosure is more likely to be seen if it’s very close to, or part of, the endorsement to which it relates.
Here are some other key take-aways to be aware of:
I’m a blogger. I heard that every time I mention a product on my blog, I have to say whether I got it for free or paid for it myself. Is that true?
No. If you mention a product you paid for yourself, there isn’t an issue. Nor is it an issue if you get the product for free because a store is giving out free samples to its customers.
The FTC is only concerned about endorsements that are made on behalf of a sponsoring advertiser. For example, an endorsement would be covered by the FTC Act if an advertiser – or someone working for an advertiser – pays you or gives you something of value to mention a product. If you receive free products or other perks with the expectation that you’ll promote or discuss the advertiser’s products in your blog, you’re covered. Bloggers who are part of network marketing programs, where they sign up to receive free product samples in exchange for writing about them, also are covered.
My company makes a donation to charity anytime someone reviews our product. Do we need to make a disclosure?
Some people might be inclined to leave a positive review in an effort to earn more money for charity. The overarching principle remains: If readers of the reviews would evaluate them differently knowing that they were motivated in part by charitable donations, there should be a disclosure. Therefore, it might be better to err on the side of caution and disclose that donations are made to charity in exchange for reviews.
What if I upload a video to YouTube that shows me reviewing several products? Should I disclose that I got them from an advertiser?
Yes. The guidance for videos is the same as for websites or blogs.
What if I return the product after I review it? Should I still make a disclosure?
That might depend on the product and how long you are allowed to use it. For example, if you get free use of a car for a month, we recommend a disclosure even though you have to return it. But even for less valuable products, it’s best to be open and transparent with your readers.
I have a website that reviews local restaurants. It’s clear when a restaurant pays for an ad on my website, but do I have to disclose which restaurants give me free meals?
If you get free meals, you should let your readers know so they can factor that in when they read your reviews.
I’m opening a new restaurant. To get feedback on the food and service, I’m inviting my family and friends to eat for free. If they talk about their experience on social media, is that something that should be disclosed?
You’ve raised two issues here. First, it may be relevant to readers that people endorsing your restaurant on social media are related to you. Therefore, they should disclose that personal relationship. Second, if you are giving free meals to anyone and seeking their endorsement, then their reviews in social media would be viewed as advertising subject to FTC jurisdiction. But even if you don’t specifically ask for their endorsement, there may be an expectation that attendees will spread the word about the restaurant. Therefore, if someone who eats for free at your invitation posts about your restaurant, readers of the post would probably want to know that the meal was on the house.
One big word of caution is product placement. I have seen several DNA bloggers who include DNA kits in their videos. In many cases, they make money from the company, either as a paid or volunteer spokesperson for the company or through affiliate links, or some other way. It’s always best to disclose your relationship with the company when using product placement and do so in a prominent manner so there’s no question.
So far, bloggers and vloggers haven’t been the target of the FTC, but it’s only a matter of time as so many bloggers and vloggers are ignoring the FTC‘s guidelines. Do you really want to be one of the first to feel the sting of the FTC?
For writers, I see many encouraging their beta readers and people who receive ARC copies to not report it when they do reviews on Amazon. Not only is this a violation of the FTC guidelines, it’s a violation of Amazon‘s policies. If you want to get delisted from Amazon, get caught doing this and you will be delisted. Seen it happen to several writers already.
In addition to the above, if you are a writer, make sure people who get free copies of your book for being a beta reader or ARC copies, note it in their reviews. The FTC can hold you responsible if you don’t. This applies to other businesses as well. It’s different if everybody can get a free copy as some writers regularly offer free copies of some of their books to the general public as a sales gimmick.
Part of this post is selfish on my part. I don’t want to get hig with overbearing restrictions from the FTC because many bloggers are ignoring the guidelines. Part of this post is to educate and encourage bloggers, vloggers, and website owners to learn the FTC guidelines to avoid the fines that the FTC is eventually going to start handing out. Don’t assume that somebody who posts FTC guidelines is necessarily following them; check out their site and compare it to the guidelines. So far, I haven’t found that many who post them to follow them.