One of Law Of Runway’s New Year’s resolutions was to start this blog. We then realized that many other small business owners and fashion icons included blogging into their goals.  Perhaps you trying to promote your products through others’ blogs. Perhaps you are starting or reviving your own fashion or beauty blog.  Together, as we take on the second month of 2014, it is time for a refresher course on how the FTC (Federal Trade Commission) regulates the promotion of products on blogs and social media. There’s plenty of details surrounding this topic, and we understand that your situation could be unique. We’ll give some basic guidelines, but feel free to email either Rachel or Maria with your questions. We have coauthored this blog article. Email us at [email protected] or [email protected].

When bloggers and social media mavens promote products for compensation or perks from a business, this type of advertising is often called “Native Advertising.”  This type of advertising has recently received a lot of attention from the FTC because it is one of the most effective types of advertising. Unlike advertisements that are located on the side of a blog, separate from the content, the term “Native” is when an endorsement of a product (an advertisement) is so intrinsically tied to speaker (as if it’s natural or organic) that it is likely that the consumers would be swayed by whatever that speaker states.

Let’s start with some broad rules. In their own blog, The Bureau of Consumer Protection offered the M.M.M mnemoic:

“1. Mandate a disclosure policy that complies with the law;

2. Make sure people who work for you or with you know what the rules are; and

3. Monitor what they’re doing on your behalf.”

Now, let’s drill down to understand which disclosure policies would comply with current laws. The FTC recognizes that applying these laws is very specific to each situation. The FTC stated that “The ultimate test is not the size or the font or the location of disclosure, although they are important considerations; the ultimate test is whether the information intended to be disclosed is actually conveyed to consumers.”  The phrase that the FTC centers the analysis upon is “Clear and Conspicuous” disclosures.

To figure out if the blogger has sufficiently conveyed to the reader that she received a benefit from the business which she is promoting, the we encourage bloggers and social media promoters to follow these rules:

1.FTC has not specified the exact language of a disclosure, but you must explain the relationship.

• It must at least indicate some kind of relationship between the endorser and the brand, such as, “My friends at ______ sent me these to try out!”
•  If the relationship is an affiliate marketing type of relationship, a more express disclosure is generally required.  For example, “I will receive compensation by clicking the link below.”

2.  Don’t assume that the reader will read your entire blog or even look at everything on their screen.

• FTC states that ideally the disclosure should be “unavoidable.”

3.  The more the reader has to scroll to see the disclosure, the less likely they are to read it

•  “Bookending” your disclosure should be included in your policies. This means you should start and end the blog article with a disclosure.

4. Draw attention to your disclosure.

•  Bolding or enlarging the font could help meet that goal.
•  Don’t use pop-up disclosures that can be ignored or blocked.

5.  Think about how the reader will differently interact with your article when it is on a smart-phone or tablet, and not a full size computer screen.

•  The length of the article and layout may seem drastically different, and a seemingly clearly placed disclosure on a computer screen may be lost on a smart-phone

6. If a disclosure is long and won’t fit in a micro-blog or a tweet, alert consumers on where to read the disclosure.

• Explicitly instruct the consumer to look in a certain place for more information
•  Make it as easy as possible for the consumer to find the full disclosure, such as a hyperlink
•  Stating a disclosure in a second “tweet” after a promoting “tweet”  is not sufficient. Promotion and directions to disclosure or actual disclosure must be in the same “tweet.”
• Make sure that the hyperlink can be accessed on various technologies where your blog may be to be read.
•  Never use a hyperlink when you can place the full disclosure within your promoted statement.

7. Choose your hyperlink name carefully.

•  Make it obvious that it is a hyperlink and more information will follow.
•  Label it in a way that explains how important it is to click on it.
• Try to explain why a hyperlink disclosure is needed, such as “Promoted Statement. Full Disclosure Information”
•  Hyperlinks that just say, “more information,” “details,” “fine print,” “disclosure,” are usually not enough. Try to give a reason for the disclosure in the hyperlink title.
•  Don’t ignore your data. If it seems like people are reading your promoted statement but not clicking on the hyperlink, think of way to increase those clicks!

If you’d like to dig deeper into these regulations or discuss your unique situation, please do not hesitate to contact us. Email [email protected] or [email protected]