28 March 2013

Analysis of the FTC Disclosure Guidelines

Many bloggers have been concerned about recent updates to the FTC product disclosure guidelines and how they apply to bloggers in the US (and to bloggers elsewhere who wish to conform to established practices). Despite having no legal background myself, after several hours of carefully reading the 2009 and updated 2013 guides, plus some other FTC materials, I can comfortably suggest that the "new" guidelines won't impact nail (or other) bloggers nearly as much as some have feared.

In a nutshell, according to everything I've gleaned from both the 2009 FTC Endorsement Guide and the updated 2013 Disclosures in Digital Advertising document, as well as a brief FTC video on endorsement guidelines and the FTC's Question and Answer page about the 2013 updates, the guidelines apply to bloggers as follows:

Be truthful about your experience with a product, and if a company sends you free samples for review, it's sufficient to say so at the start of your post with a few words like, "Company X sent me some polishes from their spring collection" before you dive into the meat of it.

That's all we need to do.

Tweeting is a slightly greyer area, given its space constraints. I'm not a Twitter user yet, but the 2013 document basically says that if you're being paid to tweet on a company's behalf, the tweets for which you're paid should clearly say "Sponsored" or "Ad" at the start and not just have an ambiguous hashtag like #spon at the end, since readers may not know what that means.

But say you're a tweeting blogger, and Joosica sends you their new bridal polishes collection. Here's how my lay-brain interprets the documents. If you got the polishes for free and are just tweeting how nice they are without linking to anything, you may wish to incorporate some disclosing language like, "Joosica sent me the new bridal polishes, and they're gorgeous!" However, if you're linking your tweet to a blog post about those polishes, a disclaimer shouldn't be necessary in the tweet itself (unless you're making "specific claims," a term I'll discuss more after the cut), since the blog post you're directing people to should already have any applicable disclaimer at its start. And again, that applicable disclaimer can simply be mentioning that Joosica sent you the polishes.

So yeah, most of the guidelines' impact on bloggers is really simple. I think a lot of the worry about their potential intrusiveness comes from the regulations geared towards the advertisers themselves and mistaken impressions that those same standards apply to any and all posts or pictures on our blogs. But unless we're making "specific claims" (again, more on that after the cut for those interested), we don't need glaring, hyperlinked disclaimer images or paragraphs of legal-ese at the start of our posts. We don't need to brand our swatches with "Free Sample!" boilerplate. The FTC isn't gunning for bloggers or out to sue us. And the one I think will be the biggest relief to nail bloggers everywhere...

We do not need to bother with silly disclosures that say we bought our own polish with our own money.

For anyone interested, there's tons more after the cut about what I understood from the documents and materials linked above and the guidelines they contain about things like "specific claims" and affiliate links, but for most nail bloggers, that's pretty much it!

Specific Claim Disclosures

The vast majority of the language and intent of the March 2013 FTC document "How to Make Effective Disclosures in Digital Advertising" (as well as the 2009 one before it) is geared towards businesses and how they must fairly and clearly display any necessary disclaimers related to the claims made by their ads. It's about those "results not typical," "paid spokesperson," or "actor re-enactment" lines you see in commercials. It's about the need for additional information without which an advert's "specific claims" could be considered misleading.

Our personal opinions about a product are not "specific claims." Rather, specific claims are the claims an advert makes about the typical results a product's users can expect, whether those claims are stated outright ("Lose 80 lbs in 80 days with SuperMega Diet Derp!") or implied (SuperMega Diet Derp's photo of a skinny guy holding up a pair of pants 3x as wide as he is). Historically, we've been used to seeing any disclaimers about how those results aren't typical shoved way down at the bottom of the ad in the tiniest font possible, sometimes even in a colour barely distinguishable from the background. Such practices may follow the letter of the rules that were written in 1980 (I haven't read those and couldn't say), but under today's FTC guidelines, they are considered insufficient, since they attempt to minimize or even obfuscate information necessary for a consumer to form an accurate opinion about the product being advertized.

What the 2009 guide requires of advertisers is basically just clarified in the 2013 updates for online media. So, if SuperMega Diet Derp wants to use that photo of Skinny McGiantpants on their website, since the photo implies that this is the sort of result one might expect from using their product, the advertiser must include any relevant disclaimers near the pic in a way that readers should easily be able to see and understand. Even if the website mentions elsewhere that Mr. McGiantpants also rode his bike for 4 hours a day and ate nothing but dust and eggshells, they need to include that info near the picture itself as well, since the photo would be what the FTC calls a "trigger" for the company's claims about the effectiveness of its product.

Now, say they want to use that same photo for a pop-up ad on some other website. They can't just show Mr. McGiantpants in his giant pants and have the only text on the ad say, "Try SuperMega Diet Derp!" The picture still makes implied claims about the results a customer can expect, and since it's no longer accompanied by the disclaimer that the website had all typed up right below/beside/above it, in this format, that disclaimer should now appear on the image itself.

This is, I believe, the sort of guideline that some bloggers feared meant that were were supposed to start stamping, "Product in this photo was sent for review" on all our swatches (or worse, that we were supposed to emblazon them with, "I bought this stuff myself!"). But even if a photo of a nail polish you were sent for review purposes were to be viewed separately from its post--for instance on Google Images or in your Facebook gallery or on Pinterest--the picture isn't making any "specific claims" that require the sort of disclosure that the guidelines above are referring to.

Specific claims and the need for disclosures can also apply to written materials (print, online, wherever they happen to appear). A disclaimer would be necessary to indicate such things as a cited clinical study that was sponsored by the product's parent company or an expert or celebrity testimonial for which the reader may not know that the endorser was paid. It's in that second example where it begins to verge towards relevance to blogging, but again, the majority of the document is still speaking to the actual product advertisers, not to us. For example, Buffster's Gym gives Cutie McStarlet a free membership, sets her up with a personal trainer, and pays her to endorse their gym. She then says, "Buffster's Gym is amazing! I've lost 25 pounds since I started going there!" If Buffster's Gym wishes to use this quote in an ad or on their website, they need to disclose that she's a paid spokesperson, and since she's had unlimited access to a personal trainer there, which isn't standard in a membership, they need to mention that too. They need to make this disclosure clearly, in close proximity to the quote itself. And since Cutie is being paid to endorse this gym, if she tweets about how much she loves Buffster's, she should start that tweet with "Ad" or "Sponsored" to reflect this financial arrangement.

Nail bloggers, however, are free to say that China Glooze Nail Strengthener seems to have made our nails stronger without worrying about citing substantiating research because we're speaking from personal experience and presumably using the product the same way any other user would. If we were sent a free sample to try, we should say that at the start of our review, but we're not making any claims beyond how it worked for us. However, if China Glooze wants to claim that their Nail Strengthener has been proven to work because they have a bunch of customer testimonials that say so, they may be on shaky ground because anecdocal claims aren't "proof." Also, if these customers they're referring to were given free samples of the product before trying it--or were told that if they gave a positive testimonial, they'd receive compensation of some kind--then they need to add a disclaimer to that effect as well, since the supporting evidence gathered for their "specific claim" of effectiveness could conceivably have been swayed by the swag or the promise therof.

Specific claims also refer to things like additional health and safety info, additional fees that could raise a stated price, the need to use a product for an extended time before promised results should be expected, and so on. This additional information needs to appear clearly and conspicuously. Not obnoxiously, just in a way that a reader can reasonably be expected to see it and understand its significance.

Press Sample or Sponsored Post Disclosure

From the 2009 and 2013 documents, the Q/A page, and the FTC video, all the FTC really seems to require of bloggers is that we be up front and honest. We should be truthful about our experiences with the products we review, and if a company gives us a free product/service for review (or pays us to feature a product/service), we should let our readers know that at the start of the post.

A simple text disclosure at the start of a relevant post is specifically mentioned as being sufficient, and it doesn't have to be all long and technical and full of legal-speak. Per the FTC video, just starting your post with something like, "Eau P Eye recently sent me some polishes from the new Random Hypothetical Collection" before you move on to discussing the polishes in question is sufficient to disclose that you're blogging about a press sample.

If an average reader can reasonably be expected to grasp right off that a company sent you this product for feature/review in your blog, then you're doing fine.

Some bloggers may prefer to use a prominently placed button that says "Press Sample" (or "Sponsored Post" if that's the case) at the top of a post and link it to a full disclaimer page, rather than use that bit of disclaimer text. This alternative isn't specifically mentioned in the guidelines, but neither is there language that explicitly discourages it. What it does say is that links to full disclosures should be labeled clearly enough that a reasonable reader will understand what it links to and why. A link/button that just says "Disclosure Info" or "More Details" doesn't really convey that this specific post is about a press sample, so if you want to use a button/link instead of disclosing via the text, it should still serve as an easily understood indication that the specific post on which it appears features a sample you were sent (or have been paid to blog about, etc...).

In the 2013 document, the subject of bloggers blogging about free samples is not actually addressed until page 51 of 53, in Example 21 of their illustrations on effective disclaimers. The full text of this example reads,
The blogger in this example obtained the paint she is reviewing for free and must disclose
that fact. Although she does so at the end of her blog post, there are several hyperlinks before that disclosure that could distract readers and cause them to click away before they get to the end of the post. Given these distractions, the disclosure likely is not clear and conspicuous.
That one passage is all these new Guidelines explicitly say to us bloggers. All of their requirements about "clear and conspicuous disclaimers" can pretty much boil down for us into "If something's a free sample, say so at the start of your post, especially if you have links that people can click to go buy the thing."

Affiliate Links

Do you use affiliate links on your blog? Here's what the Q/A page says...
I'm an affiliate marketer with links to an online retailer on my website. When people click on those links and buy something from the retailer, I earn a commission. What do I have to disclose? Where should the disclosure be?

    Let's assume that you're endorsing a product or service on your site and you have links to a company that pays you commissions on sales. If you disclose the relationship clearly and conspicuously on your site, readers can decide how much weight to give your endorsement. In some instances, where the link is embedded in the product review, a single disclosure may be adequate. When the product review has a clear and conspicuous disclosure of your relationship – and the reader can see both the product review and the link at the same time – readers have the information they need. If the product review and the link are separated, the reader may lose the connection.

    As for where to place a disclosure, the guiding principle is that it has to be clear and conspicuous. Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn't good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.

So basically, if you show/mention a nail polish and then have a link to that polish on a site that pays you a commission for people who buy through your link, something as simple as putting "(affiliate link)" next to it can be sufficient under the guidelines, especially if you have a clearly marked and easily find-able section on your site where people can read any further applicable info about your affiliate linking policies. On the other hand, if you have paid, affiliate relationship with Fake Nail Polish Company and write a blog post about how cheap and easy it is to order great new polishes from Fake Nail Polish Company, you should mention your relationship at the start of that post.

Repetition of Disclosures

The 2013 Document has the following to say about repeating a disclosure:
It may be necessary to disclose information more than once to convey a non-deceptive
message. Repeating a disclosure makes it more likely that a consumer will notice and
understand it, and will also increase the likelihood that it will be seen by consumers who may
be entering the website at different points. Still, the disclosure need not be repeated so often
that consumers would ignore it or it would clutter the ad.
This text refers to advertisers' disclosures about "specific claims" such as the total cost or a product's clinical capabilities, but if we expand it to disclosing that we're blogging about a polish we got for free, I can comfortably interpret this language as follows: If readers are likely to see one part of your post without viewing the whole thing, it's a good idea to make sure both parts of your post mention that you're showing a press sample, so you should say so at the beginning and not just at the end, since not everyone will read that far. Also, you don't need to go on and on about it.

More About That Video

This short video hosted by Mary Engle, an attorney with the Bureau of Consumer Protection (FTC), says the regs "boil down to" three common-sense principles.

1. Endorsements should be truthful and reflect your actual opinion and experience with the product, and you can't make claims about a product that you can't back up with proof, such as saying it will cure a disease.

(So, don't say that Silly Huntsen Nail Strengthener is "guaranteed to keep your nails from breaking" if you can't link to actual proof or the company's guarantee. Meanwhile, you can talk all you like about your honest, personal opinions, including that your nails have seemed much stronger since you started using Silly Huntsen's product.)

2. Testimonials about a product's results generally indicate that the user's experience is typical, and a vague disclaimer like, "results not typical" is insufficient if this is not the case.

(This one is geared more towards the advertisers themselves, for whom it's no longer sufficient to add that tiny little "results not typical" at the bottom of an advert that makes grand claims about how much weight people have lost, how their hair all grows back, and how they earn tons of money by working from home. If you want to apply it to bloggers, though, I can imagine the following hypothetical: if you're some fabulously talented and highly experienced nail artist who got great results from a product you were sent to review, but you know it'd be more difficult for the average nail artist to use effectively, it would be fair of you to mention that the product requires some practice to get the hang of using.)

3. Clearly disclose any connection between an endorser and an advertiser. Is there any material connection between the two that people might not expect and might change the way they perceive the endorsement?

(Ah-ha! Something that explicitly mentions us! As Ms. Engle states, "...If you're part of a marketing program with an advertiser, and you're getting paid or getting products or services in exchange for talking about a product, you need to disclose that relationship." The suggestion she makes on how to disclose that relationship literally shows a blog post that simply begins with, "ABC company gave me this product to try and here's what I think.")

That's all the FTC video about their guidelines says you need to do. Be truthful about your experience with a product, don't make claims you can't support, and if you got a product for free or are being paid to blog about something, say so up front.

Other Bits and Bobs

By and large, the 2009 and 2013 guidelines are geared towards companies and their advertisers. The basic gist of them lies in the following passage from the newer document:
Advertisers are responsible for ensuring that their messages are truthful and not deceptive. Accordingly, disclosures must be communicated effectively so that consumers are likely to notice and understand them in connection with the representations that the disclosures modify.
And while this is, again, information largely intended for advertisers, we can use the following FTC statements to help us make reasonable decisions about the format and phrasing of our own disclosures.
There is no litmus test for determining whether a disclosure is clear and conspicuous, and in some instances, there may be more than one method that seems reasonable. In such cases, the best practice would be to select the method more likely to effectively communicate the information in question.
The ultimate test is not the size of the font or the location of the disclosure, although they are important considerations; the ultimate test is whether the information intended to be disclosed is actually conveyed to consumers.

Me, Signing Off

As I mentioned at the start of this post, I have no legal background, and other than the passages quoted from the materials themselves, this post represents only my own interpretations of the FTC endorsement and disclosure guidelines as they pertain--and don't pertain--to bloggers. I consider these interpretations to be reasonable and correct, but since this whole post is about disclosures, I figured a final one to wrap this all up would be appropriate. If you have information from the FTC that contradicts my conclusions, please feel free to let me know.


  1. Yep, pretty much what I suspected, but with no time or interest to dive in. I found a few written statements from FTC reps that basically said "we are not gonna sue you for not disclosing". And what's with the buttons anyway?

    Thanks lady for breaking it all down and spending your time researching. It just adds to your already overflowing awesomeness <3

    1. Aw, thank you, Tara! ^_^
      Really, I think some have been making mountains out of something that's barely a molehill. Every nail blogger I know of already puts any relevant disclaimers at the end of her post, so basically, we just mention it at the top, and bam, we're done.

      The buttons just seem like a HUGE hassle to me. :P

  2. Oh wow Elizabeth, you really have been working hard - I didn't even know about this LOL
    I'll keep this link in my "help" folder - it's really useful reading!

    1. Thanks, Maria, I'm so glad you found it useful! I know it goes on (and on and on and on... ;p) a bit, but hopefully the important part up top is easy enough to get and will reassure some bloggers who've worried about what it all really means.

  3. Hi Elizabeth! I really appreciate this article of yours, I wasn't aware there were changes in this area. Thanks for your work! it's very informative and (relieving)!

    1. Glad to do it, Natalia--thank you very much!

  4. I really loved reading this post! I've seen bloggers adding buttons that link to a separate policy. If a product was sent to me for review, I always just disclosed at the bottom of my post saying "So and so sent me this for my honest review". Basically - I just do the same thing now at the top. No biggie. You've done your research - BRAVO!

    1. Thank you, Heather! I'm really glad to hear you enjoyed it--I know it was probably way too long, but I wanted to try to cover all the bits that seemed to have had bloggers worried (and kinda over-reacting, which I frankly was too before I read up on it myself).

      Exactly what you're talking about is all they're really asking us to do. :)

      When it comes to the buttons, I think having a full disclosure policy page is a good idea, but they'd want the button itself to pretty much make the point without people having to click it to understand. Personally, I'd rather toss in a few words to the effect than fiddle with links and stuff every time. Y'know, on those very rare occasions when I actually have something to disclose. ^_^

  5. Thank you for doing such a thorough overview! It's awesome to have a post with clear, concise information straight from the original source. You rock, Elizabeth! :)

    1. Chelsea, thank you so, so much!! I really was glad to do it and found the whole thing really reassuring. These guidelines are full of requirements for advertisers about what they need to disclose and how, but when it comes to us, we're pretty much fine. Just say it up top, and we're good. ;)

  6. Thank you for this, Elizabeth! It's great to have it all broken down and put into simple terms. :)

    1. Cordia, you're so welcome, and thank you very much! After reading several posts about this topic, I just got possessed by this need to come to grips with the materials themselves. And apparently to write a really long essay. :P


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