FTC Rules: Easy to Follow, Easy to Forget

Happy Lawyers Unpacking our Barbri Books

I have the pleasure of speaking at Content Marketing World next month, in part, about the FTC rules that apply to advertising.

Disclose, Disclose, Disclose
The key to complying with the FTC rules for native advertising it to always disclose when you have a relationship with a company. That includes when you get a product for free, when you have a personal relationship with an officer of the company, and when you use affiliate links. In all of these situations, regardless of the platform, you have disclose when you are compensated for sharing an opinion or have a reason to be biased.

These rules even apply on social media platforms, including Instagram and Twitter. Usually using the hashtag “#ad” is sufficient to comply with the rules. The purpose of the rule is to let the reader know about your potential bias before they form an opinion about the product or your review.

The fine for violating these rules are harsh – up to $16,000 per violation under the current rules.

See you in Cleveland!
I have a goal of finding a way to climb this thing.

So Easy to Forget
These rules are simple to follow, and it’s also super easy to forget to remember to include the proper notice in a post. I had first-hand experience with this over the last few weeks.

My colleague and I teamed up with Barbri to study for the California Bar Exam. They gave me my study course for free (I split the cost of my colleague’s course with him) in exchange for writing a weekly post about what it’s like to study for a bar exam while practicing law. We did 11 weekly posts, and I’ll write one more when we get our results this fall.

Early in each post, I repeated verbiage that disclosed our relationship with Barbri – that was easy enough. Where I had trouble was remembering to include “#ad” on every social media post. It’s easy to forget to remember to include those three characters. There were many mornings where I had to edit my posts or delete and re-do tweets to add in “#ad.”

I recently learned I’m not alone. According to research, 37% of publishers do not adhere to the FTC rules for labeling the material as sponsored. I’m curious to see if the FTC is investigating or fining content creators who don’t follow the disclosure rules.

I’m super excited to talk about the FTC rules and how to write effective contracts for content creators at Content Marketing World. It’s one of my favorite events on online advertising. I’m just as ecstatic about speaking as I am about learning from my fellow presenters.

I’m constantly doing work related to internet law, so if you want to keep up with what I’m doing or if you need help, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.  You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

FTC & Promotions – Always Disclose Relationships

My box of Mental Mojo - love this stuff! (Thanks to the owners for sending me free product!)

My box of Mental Mojo – love this stuff! (Thanks to the owners for sending me free product!)

My friends own a company called Mental Mojo – it’s a powder that contains caffeine and cognitive enhancers that you mix in water. I drink it when I’m tired – it helps me get my work done without making me jittery. (I love that it turns my water super nerd green, which reminds me of this infamous exchange between Data and Scotty on Star Trek: The Next Generation.)

Because I talk about it so much online, I usually get my Mental Mojo for free (and they’ve invited me to the taste test for the new flavors). I’m not a paid spokesperson for this company, but I do get benefits from promoting the product. As such, every time I talk about drinking free product, I need to disclose my relationship with this company – not just because it shows transparency, but because the federal law requires it.

FTC Rules about Promotions
The Federal Trade Commission has strict rules about making “clear and conspicuous” disclosures when a person has a relationship with a company. These rules apply to spokespeople, online contest participants, product reviewers, and companies that use affiliate links on your site. When you are compensated for giving an opinion, you have to disclose your relationship.

If you fail to disclose a relationship with a company, the FTC can fine you up to $11,000. And they can go after you or the company.

Even in 140 Characters
And don’t think for a second that tweets or other micro-form social media sites are exempt from this rule. At the very least, you have to include “#ad” on your post. It’s not enough to include a link to a site that includes the disclosure of your relationship.

Truthfulness and Transparency
Whenever you write a product review, whether it’s on a review site like Yelp, a product review blog post, or providing a quote for their website or LinkedIn profile, you must provide a truthful and accurate review of the product or service. Posting fake or embellished reviews (positive or negative) violates the FTC rules.

I’ve written product reviews and I appreciate that my editors respect the FTC rules by asking us to describe the benefits and drawbacks of each product we try.

Video Disclosures
If you do reviews in video form – including unboxing videos – you need to disclose when you get free product and provide honest reviews. The FTC says it’s not enough to have the disclosure in the video notes. You have to say it or post verbiage to that effect at the beginning of your video and possibly repeat this information throughout the video depending on its length.

This disclosure doesn’t have to be complex. It can be something like, “The guys at Mental Mojo sent me this free box of their product. Let’s try it out.” (If you are trying Mental Mojo for the first time, the flavor may be a bit strong. Until you get used to the taste, you may want to mix it with club soda instead of plain water. The carbonation helps take the edge off.)

Final Thoughts
Disclose disclose disclose. If you get a benefit from talking about a product or company online, disclose it. Whether it’s your employer, a client, or a company that sends you stuff for free – it should be crystal clear to anyone who sees your posts that you have a relationship with the company.

If you work with spokespersons or campaign partners, make sure part of your relationship includes an educational component about their obligation to disclose your affiliation whenever they talk about you on any platform.

I spoke about this topic earlier this year at Content Marketing World. Be sure to check out the follow-up article about this panel by Northeast Ohio Media Group.

If you want more information about this topic, please check out 6 Things to Know About FTC Disclosures When Working with Influencers or my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about a specific question related to the FTC rules and promotions, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.