This morning, the FTC announced that it is seeking public comment on whether to make changes to its Endorsement Guides as part of the agency’s systematic review of all current rules and guides. The Guides were first enacted in 1980, and updated in 2009 to more directly address social media. Among other things, the Guides states that influencers need to clearly disclose any relationship they have to the companies whose products they are promoting. Although the FTC hasn’t made any updates to the Guides since 2009, it has issued various guidance documents directed to businesses and influencers since then. (For more information about these guidance documents, listen to our podcast.)
In a proposed Federal Register notice, the FTC asks for comments on a range of questions, including:
- whether the Guides should be changed to account for changes in technology or the economy;
- whether some of the FTC’s guidance documents should be incorporated into the Guides;
- whether children are capable of understanding disclosures of material connections;
- whether incentives like free or discounted products bias consumer reviews, and whether or how those incentives should be disclosed;
- whether composite ratings that include reviews based on incentives are misleading, even when reviewers disclose incentives in the underlying reviews;
- whether the Guides should address the use of affiliate links by endorsers; and
- what, if any, disclosures advertisers or operators of review sites need to make about the collection and processing of publication of reviews to prevent them from being deceptive or unfair.
The notice, along with instructions for filing comments, will be published in the Federal Register soon, and comments are due on April 21, 2020. Companies are still wrestling with the 2009 updates, more than ten years after they went into effect, and it’s likely that any new changes will have similar far-reaching effects. If you work with influencers or incentivized reviews and need help writing comments, let us know.
Update: On March 27, the FTC announced that it would extend the deadline to respond to June 22, 2020.