Presentation title - Association of Corporate Counsel
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Transcript Presentation title - Association of Corporate Counsel
Blogs and Social Media Marketing:
Complying with the FTC’s New
Endorsement Guides
Brian Socolow
Loeb & Loeb LLP
January 18, 2011
© 2011 LOEB & LOEB LLP
Endorsements and Testimonials in New Media
Endorsements and testimonials are governed
by:
state and federal advertising laws
case law
FTC’s Guides Concerning the Use of
Endorsements and Testimonials in Advertising
2
FTC revised its Guides to include social
networking, blogs and word-of-mouth
marketing
The Guides are “advisory” in nature
Revised Guides took effect December 1, 2009
FTC Endorsement Guides
Define endorsements and testimonials broadly:
– any advertising message that consumers are likely to believe reflects the
opinions, beliefs, findings, or experience of a party other than the sponsoring
advertiser
Must reflect the honest opinions or experience of the endorser
May not contain any representations that would be deceptive,
or could not be substantiated, if made directly by the
advertiser
Must disclose a material connection that might affect the
weight or credibility of the endorsement
3
FTC Endorsement Guides
The Guides specifically address blogs:
A blogger may be liable
– for representations made in the endorsement
– if he or she fails to disclose clearly and conspicuously any payment or gift
An advertiser may be liable for a bloggers false or unsubstantiated
statements if the advertiser requested that the blogger try a new
product and write a review
FTC suggests that advertisers provide guidance and training for its
blogger’s
FTC also suggests that advertisers monitor bloggers who are
being paid to promote their products
4
FTC Endorsement Guides – Celebrity / Athlete Endorsers
Celebrities have a duty to disclose
their relationships with advertisers
when making endorsements outside
the context of traditional ads
– Kim Kardashian and QuickTrim diet
Celebrity endorsers may be liable
for false statements
– Celebrities may need to make “reasonable
inquiries” regarding the basis for statements
in the script
– Shaquille O’Neal and Power Balance
wristbands
5
FTC Endorsement Guides
The Guides specifically address word-ofmouth marketing:
Incentives given to individuals by an advertiser
should be clearly and conspicuously disclosed
6
FTC Guides for Endorsements and
Testimonials
7
FTC Guides for Endorsements and
Testimonials
FTC sent a letter to retailer Ann Taylor regarding gifts given to
bloggers who attended a fashion show
FTC decided not to initiate any enforcement action because:
–Small number of bloggers reviewed the show
–Some of them disclosed the gifts
–Ann Taylor had in place a written policy prohibiting gifts to bloggers
without first telling them to disclose gifts
8
FTC Guides – The Bottom Line
Advertisers can be liable for false or misleading statements made in social media.
Bloggers can be liable for false or misleading statements.
Bloggers should disclose any material connection with an advertiser.
Advertisers should provide guidance to bloggers and should monitor blogs to see that
bloggers are not making false or misleading statements.
Celebrities can be liable for false or misleading statements.
Celebrities should disclose when they are promoting something outside traditional
advertising such as on talk shows or social media sites.
Advertisers engaging celebrity endorsers should make sure endorsers are familiar with the
products and services they are promoting.
9
Resources
FTC’s Guides Concerning the Use of Endorsements and Testimonials in
Advertising
http://business.ftc.gov/legal-resources/1/33
FTC Endorsement Guides: What People Are Asking (FAQs for Business)
http://business.ftc.gov/documents/bus71-ftcs-revised-endorsement-guideswhatpeople-are-asking
Social Studies: Applying the FTC’s Revised Endorsement Guides in New
Marketing Media
http://business.ftc.gov/documents/social-studies-applying-ftcs-revisedendorsement-guides-new-marketing-media
When You Wish Upon a Star: Celebrity Endorsements & the FTC’s Revised
Endorsement Guides
http://business.ftc.gov/documents/when-you-wish-upon-star-celebrityendorsements-ftcs-revised-endorsement-guides
10
Blogs and Social Media Marketing:
Complying with the FTC’s New
Endorsement Guides
Brian Socolow
[email protected]
Los Angeles
11
New York
Chicago
Nashville
Washington, DC
Beijing
www.loeb.com