this Emerging Issues commentary, Barry J. Reingold of Perkins Coie LLP examines
new guidelines by the Federal Trade Commission (FTC) as to the use of
endorsements and testimonials in advertising. Mr. Reingold discusses these
changes and gives advice on how to comply with the guidelines.
Reingold writes: The Guides now apply explicitly to bloggers and other informal
'word-of-mouth' endorsers. Bloggers who are compensated to test and endorse
products must disclose that fact in the endorsement. According to the Guides,
compensation may be as simple as getting an expensive product for free if the
blogger is well known in the product user community and regularly reviews new
the Guides, advertisers and endorsers may be jointly liable for false or
unsubstantiated statements in endorsements. Thus, in our example of Joe the
Blogger, both the manufacturer and Joe may be liable for false or deceptive
statements in the blog (such as '10 times faster than any other game system out
there') or for failing to disclose that the manufacturer gave Joe a free
system. The fact that the advertiser does not control what Joe says is not a
your advertising violate the Guides? First, determine whether a statement or
online product posting is 'advertising' for FTC purposes. Is it an explicit or
implicit claim by an advertiser or its agent about the qualities,
characteristics or efficacy of a product or service designed to promote sales?
Julie's blog statement that Smoothie Skin cures eczema is an advertising claim.
But simply posting on her blog a picture of Julie applying Smoothie Skin is not
an advertising claim.
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