IP Watch

December 17, 2009

"Results Not Typical" - Bloggers and Celebrities (and Advertisers) Must Comply with New FTC Guides

By: Cynthia Blake Sanders

Grass roots marketing just became a little less green. The Federal Trade Commission (FTC) issued the final updated Guides Concerning the Use of Endorsements and Testimonials in Advertising. Effective December 1, 2009, the new Guides expand in scope to include advertising messages in websites, blogs, and other social media. Bloggers failing to follow the Guides could pay up to $11,000 per violation. Advertisers and agencies connected to a blogger's post may share liability. It's imperative that businesses review current marketing practices with the new Guides now. The FTC can challenge misleading and deceptive advertising anytime.

That's because the new Guides do not change the law. The Guides were developed to help advertisers and agencies determine if their advertising is deceptive under Section 5 of the FTC Act. The Guides provide principles and examples demonstrating how the FTC determines if advertising is misleading. By following the old Guides, advertisers and ad agencies could steer clear of FTC enforcement actions and the class action lawsuits and state enforcement actions that often follow. The new Guides cast a broader net, and in uncharted waters. No, the new Guides do not provide an unambiguously safe path for blogging about products. But they do reveal the types of marketing activities the FTC is targeting.

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Cookies, Advertising and the Federal Trade Commission

By: Kyle E. Conklin *

Considering that the Federal Trade Commission (FTC) has been active this year protecting consumers in the online world, a business should evaluate its current online data collection practices and its website's terms of use and privacy policy. Just this month the FTC's updated Guides Concerning the Use of Endorsements and Testimonials in Advertising that expanded the scope of protection to include websites, blogs, and social media became effective, and the FTC hosted a roundtable to discuss risks and benefits of information-sharing practices, consumer expectations regarding such practices, behavioral advertising, information brokers, and the adequacy of existing legal and self-regulatory frameworks. With the FTC's recent action, a review, or perhaps for some a first examination, of the FTC Staff Report: Self-Regulatory Principles for Online Behavioral Advertising is warranted. Particularly, this article will discuss what is online behavioral advertising and the FTC's self-regulatory principles.

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