On December 1, 2009, the Federal Trade Commission (FTC) updated their rules regarding advertising disclosures. It was the first time that the rules specifically brought bloggers under the FTC rules and guidelines. And the blogging world, since then, has been trying to figure out what to do.
The FTC provisions are set out in 16 CFR Part 255. That’s fancy talk for the Code of Federal Regulations, which is where Federal rules and codes are made public. It’s a lengthy legalese-filed document, crafted by a team of very knowledgeable and capable attorneys and regulators. But it’s not in plain English and has left a great deal of room for interpretation.
The FTC rules pertaining to bloggers are not specific. There is no numbered list telling bloggers exactly how to comply with the new rules. And that has created a wide range of responses by bloggers from many different niches. Some are up-front and suggest overt and clearly placed disclosures. Others believe that they put it on a ‘Disclosure Policy’ page and that it’s up to the reader to read it.
While the FTC does not provide a clear set of what a blogger can and can not do, it is very clear in the guidelines that all disclosures must be “clear and conspicuous“. You’re thinking, that sounds very legalese so what does that mean in English?
For several decades, the FTC didn’t concern itself with bloggers. However, it was due to a rise in complaints by consumers regarding what they deemed to be unethical practices that caused the FTC to step in. Our government is very paternalistic. Bloggers on their own were not able to standardize the practice of disclosure so the FTC stepped in and basically said ‘If you’re not going to do it, we’ll do it for you.’ It became increasingly difficult to determine what was or was not an advertisement or endorsement, so the guidelines are trying to set up a paradigm where it’s clear what the relationship is between the parties.