When the Federal Trade Commission released its new guidelines on using testimonials and endorsements in advertising, it wasn't clear how the rules were going to be enforced or what bloggers who did product reviews and the like needed to do, other than informing their readers when they are being compensated to talk about products or events on their blogs.
Today, law.com posted a piece by Kelly D. Talcott which provides a nice overview of what the rules require and explains how both bloggers and the companies that compensate them may be liable if blogger endorsements are not handled correctly. It's different than so many of the posts and stories I've seen on the topic because it does more than warn bloggers/reviewers that they need to be careful. Talcott focuses on the obligations of advertisers who rely on third parties (bloggers or Twitterers) in light of these new guidelines.
First, Talcott explains what constitutes a paid endorser under the rules. He writes:
If a blogger regularly receives sample products from manufacturers for review, the FTC suggests that the blogger's "positive review would be considered an endorsement under the Guides." If it happens, however, that the blogger's receipt of a sample is an irregular event, or one that was not necessarily designed by the advertiser to elicit a review, then the FTC suggests the blogger may not be an "endorser."
He then suggests that those who rely on bloggers and other third parties to get the word out about their offerings should develop a set of rules regarding what is permissible vs. what is not. He also says that advertisers have a duty to monitor what reviewers are saying to ensure that the guidelines are not violated.
Though Talcott focuses on the advertisers, he does not neglect bloggers/reviewers entirely. He cautions that they should not blindly pass on advertiser statements about the products or services."Internal procedures can require that published reviews be based not solely on advertiser-supplied copy, but also on the author's independent evaluation of the product...a blogger [can] be liable for the misstatements of an advertiser," he says.