This is the first report I've seen of an FTC investigation under the December 2009 blogger endorsement guidelines and, although it sends a clear message about compliance with the guidelines, it also leaves a significant number of compliance questions unanswered.
The Ann Taylor apparel chain held a preview of its summer fashion collection and apparently provided some type of gift to the attendees. A sign was posted at the event instructing any bloggers attending the event that they should disclose the gifts if they posted comments about the preview. Somehow this came to the attention of the FTC, which launched an investigation into whether Ann Taylor violated the blogger endorsement guidelines. The FTC closed the investigation without assessing any penalties on the grounds that (1) the preview was a one-time isolated incident; (2) only a few bloggers posted about the event; and (3) Ann Taylor had a written policy (even though it was not adopted until after the event) that any blogger receiving a gift from Ann Taylor had to be notified that the gift must be disclosed. The FTC noted in passing that the sign at the event probably did not provide adequate notice to all of the attendees.
The obvious take-away for marketers and advertisers is that they should adopt written policies regarding blogger disclosures, take reasonable steps to inform bloggers of those policies and make reasonable efforts to monitor blogger compliance with their disclosure obligations. Gonzalo Mon's write-up does a good job covering these basics.
But the investigation and its conclusion leave open a number of very significant issues, as John Feldman notes. Do the endorsement guidelines extend to off-line conduct? Does a marketer have to assume that every attendee at any of its events is a potential blogger who must be informed of the marketer's disclosure guidelines? Does trade-show swag now trigger disclosure?
My assumption is that the FTC will follow its historical practice of addressing compliance on a case-by-case basis, avoid issuing comprehensive guidance for practitioners and leave itself maximum enforcement flexibility in this area. So we'll all have a lot of tea leaf reading to do over the next couple of years as compliance standards for the December 2009 blogger endorsement guidelines evolve.
The Ann Taylor apparel chain held a preview of its summer fashion collection and apparently provided some type of gift to the attendees. A sign was posted at the event instructing any bloggers attending the event that they should disclose the gifts if they posted comments about the preview. Somehow this came to the attention of the FTC, which launched an investigation into whether Ann Taylor violated the blogger endorsement guidelines. The FTC closed the investigation without assessing any penalties on the grounds that (1) the preview was a one-time isolated incident; (2) only a few bloggers posted about the event; and (3) Ann Taylor had a written policy (even though it was not adopted until after the event) that any blogger receiving a gift from Ann Taylor had to be notified that the gift must be disclosed. The FTC noted in passing that the sign at the event probably did not provide adequate notice to all of the attendees.
The obvious take-away for marketers and advertisers is that they should adopt written policies regarding blogger disclosures, take reasonable steps to inform bloggers of those policies and make reasonable efforts to monitor blogger compliance with their disclosure obligations. Gonzalo Mon's write-up does a good job covering these basics.
But the investigation and its conclusion leave open a number of very significant issues, as John Feldman notes. Do the endorsement guidelines extend to off-line conduct? Does a marketer have to assume that every attendee at any of its events is a potential blogger who must be informed of the marketer's disclosure guidelines? Does trade-show swag now trigger disclosure?
My assumption is that the FTC will follow its historical practice of addressing compliance on a case-by-case basis, avoid issuing comprehensive guidance for practitioners and leave itself maximum enforcement flexibility in this area. So we'll all have a lot of tea leaf reading to do over the next couple of years as compliance standards for the December 2009 blogger endorsement guidelines evolve.
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