In chatting with a friend in the industry, they remarked how it seemed to them that the FTC operated two years in arrears. They looked at this week’s earlier announcement regarding the updating of the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising as an attempt to slap companies like Pay Per Post. Individual bloggers saw it as an attack on their livelihood. The cadre of part-time bloggers are quite like the small affiliate. For them every dollar counts. They are the most vocal group, the most time consuming group, and ultimately, the group that, for lack of more polite phrasing, doesn’t really matter. If what we read is true, the large population for whom the freebies have made a meaningful impact on their lives has little to worry about. They shouldn’t purposefully screw up, but if they try their best to comply and act with common sense, they shouldn’t have to worry about the details. They don’t have to worry too much because we hear that the FTC has never sued a consumer endorser; as we’ve seen with other examples of altercations with the FTC, they focus on the money part of the equation more – making sure advertisers comply and that they enforce compliance downstream, i.e. to the bloggers.
As we wrote in our other article covering the FTC revisions to their advertising and endorsement guidelines, we suspect the first to fall prey to running afoul of the rules will come not from the celebrity tweet or food blog praising the Magic Bullet without mention. More egregious examples happen all the time on TV. Just watch the Biggest Loser when they talk about Subway or Ziplock bags. No, we believe enforcement will start with the direct marketing space, which in its quest for media profits has more than once taken liberties with messaging. And, in the past, the performance marketing sector has chosen the disclosure version of ask forgiveness rather than permission, that is they err on the side of too little disclosure not too much. Taking an alternative view, the rules are complex, and it’s understandable why it took three plus years for the final revisions to take place. Much like the judicial system, the art and science of good rule making is being both broad and narrow, not an easy balance to strike. And, it seems only a harder balance to properly implement. You don’t want to tell people how they must advertise; yet, you must at the same time tell them how they can’t.
The release of the new Guidelines comes at an interesting time with respect to fake blogs in particular. Self-regulation has not happened within those marketing them, but it has happened to some degree with traffic sources cutting down on what they will accept. The challenge of course is finding a common language so that we don’t end up with dozens of rules depending on the source. That’s the main benefit of some industry set guidelines. Regardless of what standards could exist, that won’t deter the truly bad examples, those whose only goal involves deception. But, it could mean a longer runway for the format that has started to take hold – advertorial platform. Advertorial’s have a long history in offline media, so it makes sense that their equivalent should exist online. It has struggled though to find what shape it takes, because unlike offline media where an advertorial exists within the confines of other media, like a newspaper or magazine, here the pages are an island to themselves. And, that meant no accountability to either taste, design, or a moral compass. Judging by what we’ve seen recently, things have started to shift. Take for example, the latest iteration focusing on ECigarettes.
Look at the above and compare it to one for teeth whitening.
With domain privacy invoked on both, it’s not possible to gauge their relatedness. But, the look and feel is that more of a platform, a style of page that can be modified to promote a variety of items. It’s more of a template for the online advertorial. What we lack insight on though is their compliance. And, this is why we don’t envy either side. It’s almost too easy to see each point. In favor of the site owner, these actually say Advertisement at the top. They do so in about the same text size as what you would see in an offline publication. What we wonder is, what does that disclaimer provide in terms of freedoms? For example, does saying that the site is an ad imply it can use completely fake personalities, such as the reporter, or if that person does exist, passing them off as a reporter for a publication? Again, it’s not all that different from presumably approved ads seen in other contexts. Another area of interest for us focuses on the text. Here we don’t see the first person narrative about the mother from whatever state you happen to be in when reading. This newer version does quote that person though. And, in breaking with offline examples, these have testimonials / customer reviews – already a sensitive topic when it comes to non-deceptive advertising. Yet we see such on television all the time.
Sooner than later, we will out some of these answers. They won’t be hard and fast rules though, just a greater list of what does not comply. Our biggest question is trying to predict the impact that past bad behavior has had on what will be allowed in the future. If the body of trademark infringing, flagrantly deceptive sites hadn’t set the context for the marketing, we suspect the liberties afforded would be much greater. We’re glad to see the transition towards more advertorial looking pages and less blog like sites. We’ve always suspected that even pages with great disclaimers could convert. Just look at the prescription drug arena. It’s amazing some of what they must disclose and the enormity of the side effects. Since when is abdominal bleeding a mild side effect? People, though, don’t care. They feel they need it, and it doesn’t take lying to them to invoke that need, a need so great it will risk taking something with a proven history of causing increased risk of suicide. Surely, if that can be marketed effectively, we can find a way to market what we want with as much proper language as needed.
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