My Understanding of FTC Regulations for Bloggers

A blogger friend expressed concern to me about FTC regulations, so I read FTC regs 16 CFR 255 and the FTC’s explanatory notes about that part. And, since I did that, I might as well share some of my own rules thumb with you. Please scroll to the bottom for my disclaimer. And if you don’t read that, keep in mind that this is not legal advice. Shit, it might not even be reliable at all.

Here are some good rules of thumb when you are writing about products/companies:

Tell the Truth. Be Candid. Understand that the FTC’s goal seems to be to prevent consumers from getting tricked and that they evaluate every case on a case-by-case benefit. If you are being completely honest, then you probably don’t need to worry about the FTC getting mad at you.

Don’t exaggerate. Don’t make stuff up. If you tell the truth, then you aren’t tricking anyone and the FTC therefore probably doesn’t care what you say. Don’t make up health benefits, for example. If you don’t know from an authoritative source that product x cures condition y, then don’t say it.

For Marx Foods Products: We want you to be completely honest about our products’ benefits and whether you like or dislike them. Part of the reason that we send samples is to get your honest opinion. So, please be candid. If you love our products, please say that. And, if you don’t, please understand that we are big boys and girls. We can take negative feedback.

Provide Full Disclosure about your relationship with the company. If you provide full disclosure about your relationship with the products/company, then your readers will be able to weigh your opinion properly. Full disclosure doesn’t necessarily mean that you have to have a big bad legal volume at the end of your post, the FTC wants to make sure that you “clearly and conspicuously disclose that (you) received the (product) free of charge”.

For Marx Foods Products: So, If you are writing about free samples that you received from us, then instead of saying: “I got these mushrooms from Marx Foods”, say “I got these mushrooms from Marx Foods for free”. Now your readers know.

Your writing might not fall under the authority of the FTC … It depends on the relationship that you have with the company. Imagine a continuum between a) you bought the product at full price and b) you got paid to

write the review. If a company paid you to write a review, then you should disclose that. If you bought the goods at full price, then you probably don’t need to disclose anything so long as you are being candid. In between those two ends is a gray area. If you often review products, if the product has a high value, or if you are a prominent blogger with a large readership, you will be closer to (b). If you are anywhere close to (b), then you should disclose the nature of your relationship with the company. And, if you aren’t anywhere close to (b), you might as well disclose the relationship even if the FTC doesn’t care.

For Marx Foods Products: We don’t pay for reviews. We just provide free samples. So, like I said above … just mention in your post that you got the goods for free.

It kinda also depends on the value of the free stuff. The FTC was clear that just because the samples were inexpensive doesn’t mean that the regulations don’t apply. From a pragmatic perspective though, I would guess that the FTC is going to be much more concerned if you are recommending a $2,000 laptop that you got for free than if you are recommending a laptop case. It’s not that the FTC cares about what you got for free … they care about whether your readers get tricked into purchasing a product that doesn’t match your description. And, they probably care a lot more if it is an expensive item. Imagine that your reader purchases the product and it turns out that you were really exaggerating the benefits. Your reader will be much more harmed if that product was a $20,000 car, than if the product was a $2 car air freshener.

For Marx Foods Products: While it is more important for you to disclose that you got the Fresh Alba Truffles for free than it is to disclose free dried shitake mushrooms, play it safe. Disclose everything.

In general, think about what your readers would ordinarily expect. If they are expecting you to be unbiased and would be surprised to learn that you are being paid or that you got free stuff, then the FTC wants you to be very clear about that to your readers. It is all about their expectations.

Disclaimer: As you may know, I went to law school, but that does not mean that this post should represent legal advice. While I know how to read regulations: 1) I read only one tiny little section (16 CFR 255); 2) I do not and have not ever practiced law; 3) I did not ever study media law, so there were several terms in the regulations that I don’t understand and I was reading out of context; 4) I read the section only in the context of the free samples that we hook bloggers up with; and 5) this stuff is really complex and over my head.