New Blogging and Endorsement Guidelines

Short answer: the FTC’s Endorsement Guides require that any paid or incentivized endorsement be disclosed, and that both the advertiser and the sponsored endorser can be liable for false, misleading, or unsubstantiated claims and for failing to disclose the connection. If your software company pays bloggers, influencers, or affiliates to promote your product, you need clear disclosure and substantiation rules in place.

I tracked this for a while before writing, because I wanted a concise, useful take. So here goes.

The Federal Trade Commission published these guides to address what some advertisers were doing on blogs and social media: paying people to endorse a product without actually believing in it, or even using it. The FTC focuses on the advertiser, not ordinary bloggers or users, unless the blogger is a sponsored endorser, meaning someone who gets money, free product, or anything else of value for promoting the product. The FTC even said it did not write the guides to sue bloggers, which was a nice touch.

A definition helps. An endorser publishes a message “consumers are likely to believe reflects the opinion, belief, finding or experience” of the publisher, and is not the advertiser.

So it matters whether the person is:

• Giving an independent review. Generally off the hook.
• Compensated by the advertiser, directly or indirectly. This is where the rules bite.

Sponsored endorsers include paid bloggers and people who get lots of free product. When there is a sponsored endorser, both the advertiser and the endorser can be liable for false or unsubstantiated claims and for failing to disclose the paid connection. So the advertiser should require, by contract, that the endorser discloses the connection and publishes only substantiated claims. The advertiser should also monitor the endorser, because it can still be liable for the endorser’s false claims.

A Simple Decision Tree.

1. Is the message an endorsement?
2. If yes, is it an independent review, or is there some compensation from the advertiser?
3. If there is compensation, the endorser must disclose the connection, must not make false claims, and must substantiate any representations. Require all of this by contract.

And of course, every message should rest on honest beliefs, findings, or experiences. That part goes without saying.

What Has Changed Since 2009.

These guides are not frozen in 2009. In 2023, the FTC substantially revised the Endorsement Guides to take direct aim at social-media influencers, undisclosed “#ad” relationships, and incentivized reviews. The FTC also moved against fake and AI-generated reviews and testimonials. For the current details, it keeps its advertisement endorsements guidance up to date. The throughline has not changed: disclose the connection, tell the truth, and substantiate your claims. As a software licensing attorney, I think every software and SaaS company should fold this into its content-marketing and affiliate programs.

Frequently Asked Questions.

Do I have to disclose free product I send to a reviewer? Yes, if it is enough to be a “material connection.” Free product given to drive a review counts, so the reviewer should disclose it clearly and close to the claim.

Can I be liable for an influencer’s exaggeration? Yes. The advertiser can be on the hook for a sponsored endorser’s false or unsubstantiated claims. So require disclosure and substantiation by contract, and monitor what they post.

Are fake or AI-generated reviews a problem? Very much so. The FTC’s 2023 update and its rule on reviews target fake, AI-generated, and incentivized reviews directly. Do not buy, write, or distort them.

Auto-renewals, endorsements, and reviews all sit in the same FTC consumer-protection zone. For a related issue, see our note on the FTC Negative Option Rule, and on a privacy-side FTC action, the Google Buzz settlement. I hope this helps.

Disclaimer:

This post is for informational and educational purposes only, and is not legal advice. You should hire an attorney if you need legal advice, which should be provided only after review of all relevant facts and applicable law.