• When Is a Blogger a Product "Endorser"?
  • October 26, 2009
  • Law Firm: Venable LLP - Washington Office
  • The Guides define "endorsement" as "any advertising message that consumers are likely to believe reflects the opinions . . . of a party other than the sponsoring advertiser" – including consumer bloggers.  The fundamental question is whether the speaker is (1) acting independently or (2) acting on behalf of the advertiser (or its agent).  If the latter, the speaker’s statement is an endorsement. 

    The facts and circumstances that will determine the answer to this question include whether the speaker was compensated by the advertiser, whether the product or service in question was provided for free by the advertiser, the previous receipt of products or services from the same or similar advertisers, the likelihood of future receipt of such products or services, and the value of the items or services received.

    Just because the advertiser does not control the specific statement made in a blog or other forms of consumer-generated media does not necessarily mean that the statement is not an endorsement within the meaning of the Guides.  The issue is whether the consumer-generated statement can be considered “sponsored.”  A consumer who posts about a product purchased with his or her own money is not providing an endorsement for purposes of the FTC Guides because the post is not a sponsored advertising message.

    And even if that consumer receives a single free sample from a marketer and writes positively about it on a personal blog or on a public message board, his or her comments are not likely to be deemed an endorsement given the lack of any continuing relationship with that advertiser that would suggest that the consumer is disseminating a sponsored message.  In contrast, postings by a blogger who is paid to speak about an advertiser's product will be covered by the Guides, regardless of whether the blogger is paid directly by the marketer itself or by a third party on behalf of the marketer. 

    Let's assume that a blogger receives merchandise from a marketer with a request to review it, but with no compensation paid other than the value of the sample product itself.  In this situation, whether or not a positive review by the blogger would be deemed an endorsement in the FTC's eyes will depend on, among other things, the value of that product, and on whether the blogger routinely receives such requests.  If that blogger frequently receives products from manufacturers because he or she is known to have wide readership within a particular group that is within the marketer's target audience, the blogger's statements are likely to be deemed to be endorsements, as are postings by participants in network marketing programs. 

    Similarly, consumers who join "word of mouth marketing" programs that periodically provide them products to review publicly (as opposed to simply giving feedback to the advertiser) will also likely be viewed as giving sponsored messages. The fact that the participants might be free to say nothing about any particular product they receive through the program does not change the FTC's view that any positive statements are endorsements.
    The FTC added the following hypothetical examples to the revised Guides to help illustrate these principles:

    A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog's fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides.

    Assume that rather than purchase the dog food with her own money, the consumer gets it for free because the store routinely tracks her purchases and its computer has generated a coupon for a free trial bag of this new brand. Again, her posting would not be deemed an endorsement under the Guides.

    Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides.

    In the first hypothetical, the blogger's statement is not deemed to be an endorsement because there is no relationship between the speaker and the manufacturer. In the second hypothetical, given the absence of a relationship between the speaker and the manufacturer or other factors supporting the conclusion that she is acting on behalf of the manufacturer, her review would not be deemed to be an endorsement.  In the third hypothetical, there is an ongoing relationship between the consumer and a network marketing program that results in an economic benefit to the consumer (the stream of product samples), so the blog posting is deemed to be an endorsement within the meaning of the Guides.