by Justin J. Prochnow
Companies trying to stay ahead of the curve are constantly coming up with innovative and creative methods of advertising in order to generate buzz about their products. In the last several years, the use of blogs that endorse and promote products has become an increasingly popular form of media used in advertising. This use of blogs and other forms of new technologies that continue to percolate the advertising arena to promote products forces regulatory agencies like FTC to continually review their enforcement arsenal and determine whether the available enforcement guides and regulations are sufficient to keep up with the changing technological landscape. The approval of revisions to the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, which become effective Dec. 1, 2009, signifies FTC’s recognition that the former FTC Guides were outdated, and represents the first revision to the FTC Guides in almost 30 years. For companies looking to promote products, it is critical to understand how the revised FTC Guides will be applied to blogs and other forms of newer media
First, it’s important to understand some of the basics. A blog is a type of Web site, usually maintained by an individual, which maintains an ongoing chronicle of information, often containing regular entries of commentary, descriptions of events, or other material such as graphics or video. As the prevalence of blogs has continued to rise at a rapid rate, focusing on topics ranging from sports and politics to movies and sex, and everything in-between, the use of blogs as a form of marketing or advertising to promote and endorse products has also risen. Some bloggers make no effort to hide their affiliation with a product’s sponsoring company; in other cases, it may not be clear that the opinions presented on a blog promoting a particular product are being subsidized by the sponsoring company. Additionally, there are many bloggers who have no connection to a company and are simply offering an unsolicited opinion about a product. The wide gamut of blogs and differing levels of affiliations to companies and products made it difficult for FTC to appropriate regulate this form of media. The revisions to the FTC Guides, in part, reflect the agency’s efforts to address the issues raised by blogs and other media.
The FTC Guides provide guidance concerning FTC’s regulation of endorsements and testimonials in advertising. The FTC Guides are located in the Code of Federal Regulations at 16 CFR Part 255. Essentially, 16 CFR § 255.0(b) states an “endorsement” is any advertising message consumers are likely to believe reflects the opinions, beliefs, findings or experiences other than the sponsoring advertiser. Consumer testimonials are considered a form of endorsement. The notice regarding the publication of the revised FTC Guides discusses comments received by FTC about certain of its revisions. In particular, the agency received numerous comments about the application of the FTC Guides to the new “consumer-generated media,” including blogs.
