I’ve talked pretty extensively about the right ways to disclose paid or compensated posts/projects on the blog:
Then, of course, there’s my own policies page chock full of disclosures, featured prominently at the top of my site. But there are a lot of confusing, gray areas — and it’s not always easy to do the right thing. So, I wanted to break down some of the questions you might have.
(This is a SUPER important note. I am not a lawyer. I am not offering legal or other advice, and I beg you to follow the links below so you can see the official sources from which I’ve pulled my own interpretations. This should not be construed in ANY WAY as official legal or other advice.)
- .com Disclosures via the FTC **the official word!
- Guides Concerning the Use of Endorsements and Testimonials and Advertising via the FTC
- The FTC’s Revised Endorsement Guides via the FTC **the most helpful!
- The FTC Explained via BlogWorld **the second most helpful!
- Disclosures for Bloggers and Brands via Social Media Explorer
- FTC Clarifies its Rules for Bloggers via BlogHer
- New FTC Rules on Writing Reviews, Affiliations and Sponsored Posts via Will Write for Food
Do I Have to Disclose If…
…I paid for a product myself, with no discounts or other compensation?
Nope! The FTC’s guides only apply when you are acting as an advertiser or endorser, on behalf of a brand or company. If you paid for something yourself, you’re in the clear. The only note that I’ll add is that if you regularly DO get product, and in the past you have been unclear or murky about disclosure…you might want to add a note that you did pay for it yourself. Again, not required, but it’s really about the spirit of the rules. The guides are meant to help your readers know what your motives might be behind sharing something, so if you think there’s a chance that it might be unclear, DISCLOSE.
…I received free product but was not paid in cash or other compensation?
YUP. Even if the free product was valued at a few bucks (say, a pair or socks or a couple of yogurts), you gotta disclose. Remember that it doesn’t matter whether you think you or your opinions were affected by the freebies — it matters what the reader might think.
…I mention a free product that I received but the post itself is about something else?
In general, the answer is yes. The key is that the disclosure needs to be clear and close to the mention. So if you’re posting about your latest training run and in the post, you want to talk about how much you love your shoes (and those shoes were freebies or sent to you as a compensated review), you need to disclose near that mention but not necessarily at the top/bottom of the post.
…I received free product but was not asked specifically to review it?
Yes. It doesn’t matter if you were asked to review the product or not — your opinions may have been shaped by the fact that the stuff was free. And again, put yourself in your readers shoes: they can only assess your review with all of the details. From the FTC: “Example 8: Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides.”
…I received products in a conference/event swag bag?
No. the FTC doesn’t consider this to be a compensated relationship, in which you’re posting on behalf of the company. Still, I think it’s nice to disclose to readers, but that’s just me!
…I got a product as a free sample in a place where others had access to the same samples?
No. From the FTC: The Guides cover only endorsements that are made on behalf of a sponsoring advertiser. For example, an endorsement would be covered by the Guides if an advertiser – or someone working for an advertiser – pays a blogger or gives a blogger something of value to mention a product, including a commission on the sale of a product. Bloggers receiving free products or other perks with the understanding that they’ll promote the advertiser’s products in their blogs would be covered, as would bloggers who are part of network marketing programs where they sign up to receive free product samples in exchange for writing about them or working for network advertising agencies.
…I work for the company that makes/sells/markets the products?
Probably. There is some language in the guides that allows for non-disclosure if you believe that your readers all understand your relationship (if you’re Tony Horton, people know that you’re the P90X guy). But it also reminds us, several times, that if even a few people might not understand your potential bias, you have to disclose. So I say this is a yes.
…I got a discount code to purchase something at a lower price?
Again, probably. Did the code come from the brand or company? The answer is yes. If you used a discount code that you found online or somewhere else that was accessible to the public to get a deal on something, the answer is no. From the FTC: Here’s another way to think of it: While getting one item that’s not very valuable for free may not affect the credibility of what you say, sometimes continually getting free stuff from an advertiser or multiple advertisers is enough to suggest an expectation of future benefits from positive reviews. If you have a relationship with a marketer who’s sending you freebies in the hope you’ll write a positive review, it’s best if your readers know you got the product for free.
…I include an affiliate link where I make money from purchases through that link?
Yes. Even if the review itself is 100% honest, and the company has not paid you to post (let’s say, if you’re sharing your favorite running products and linking to an Amazon store), you’re being compensated. So it’s really important that your readers understand your possible bias before buying the item.
…I’m in a longterm relationship with a brand and all of my readers know this?
Yikes. Maybe. I say yes. The FTC says…yes-ish. From the FTC: if a significant number of … readers don’t know that, a disclosure would be needed. Determining whether followers are aware of a relationship could be tricky in many cases, so a disclosure is recommended.
…I disclosed the product in the original review but continue to use it in a non-paid way?
Maybe. Let’s say you got sneakers for free and disclosed that in the original review. Later, you post a picture in another post where you’re wearing the shoes but don’t mention them. You are probably OK. But if under the picture you say “aren’t those sneakers awesome? so comfortable!,” you are essentially reviewing them again and you need the disclosure.
…I have a badge on my site disclosing all of my compensated relationships and affiliations?
That’s good! But you still need to disclose on an individual basis.
And a few extra best practices/requirements from the FTC:
- Unsure? Disclose. Better for your readers to be absolutely sure what’s happening behind the scenes than have to guess at your motives or compensation.
- Disclosure must be as close as possible to the paid/sponsored claim.
- CLEAR. CONCISE. CLOSE. Keep those three words in mind.
- Disclosures must be made before a reader is taken to a checkout or other page on which they might buy a product. (You can’t rave about an amazing pair of shoes and only disclose your compensation on the checkout page.)
- If a post is long, disclosure may need to be repeated so there’s no confusion. (This is why I often disclose at the top and bottom of a sponsored post.)
- You still can’t be deceptive. You aren’t allowed to review a product you haven’t actually used, or to claim things that can’t be substantiated (opinions are one thing but stating claims of fact is another).
One more thing? As important as it is to follow the rules — and it is, especially for the protection of your loving, loyal readers — the FTC does not have the direct ability to issue a fine for not complying with an FTC guide*** and the FTC is not even actively monitoring bloggers. So don’t panic. Just be smart.
***AGAIN! I’m not a lawyer! And keep this in mind. The FTC does not have the DIRECT ability to fine for people who violate the terms laid out in its guides, but it absolutely can and does investigate and if a claim is egregious enough, you can get in BIG trouble. That trouble could include law enforcement, fines and all kinds of nasty consequences. Endorsers, which is what most bloggers are, may not be the targets but advertisers can be…and frankly, that’s not something you want to get involved with.