A Wall Street Journal article today touts an upcoming book
by Harry Hurt III, which recounts a cross-country road trip with an impressive
list of encounters with notable figures including former President Bush. But
more notably, this book includes a plethora of product-placement deals and
other sponsorships. This approach, while innovative, may raise issues in
connection with the FTC Endorsement Guidelines. If applicable, the guidelines
may create legal issues for Mr. Hurt and the sponsors. A prior post highlights
some recent enforcement actions for those who have not complied. This is an
issue that journalists and advertisers need to pay heed to because additional
enforcements are likely.
The range of sponsorships include deals that range from companies
agreeing to: promote his book through
e-mail, Twitter, Facebook and other electronic blasts in exchange for
advertising within the book; supply travel gear (e.g. Coleman Co. providing sleeping
bag, tent and $2500 cash) for which Mr. Hurt endorses Coleman's products saying
things such as "the Coleman engineers have done a remarkable job..."; and $1,000
in monthly credits from Best Western International in exchange for filming
videos showcasing the hotels' amenities. Interestingly, a hotel spokesperson
called this deal "standard industry practice" for bloggers and free-lancers.
Kudos to Mr. Hurt and his sponsors for the innovative
approach that enabled him to self fund and self publish this e-book. However,
as the article notes, his dual role as both an ad salesman and a journalist
strikes "an unholy alliance." The issue is whether an author, beholden to such
sponsorships, can be objective in his or her writings. In the article, Mr. Hurt
stated that the book is "mainly the truth," but recognized that it may raise
questions as to his objectivity. He added that he doesn't believe his
objectivity was compromised because he only struck deals with companies he
already patronized and asked readers to trust his judgment and integrity.
I have no reason to doubt Mr. Hurt's judgment or
integrity. However, this scenario raises some interesting legal issues. A
growing number of bloggers and other journalists have come under fire for
touting products for which they received some undisclosed financial benefit.
While these practices are hopefully the exception rather than the norm, they
caused the FTC to take action.
In 2009, the FTC implemented guidelines that addressed the
use of endorsements and testimonials in advertising. The main stream press
highlighted the part of these guidelines that require disclosure by bloggers of
compensation received for recommending a product or service. However, the
guidelines include some lesser known provisions, which apply more broadly, and
may be relevant to the types of deals that Mr. Hurt struck.
The guidelines are not limited to bloggers, but cover "any
advertising message" that consumers are likely to believe reflects the
opinions, beliefs, findings, or experiences of the endorser (or any party other
than the sponsoring advertiser). This includes testimonials endorsing a product
or service on any social media site, not just blogs.
When a connection exists between the endorser and the
seller of an advertised product that might materially affect the weight or
credibility of the endorsement, such connection must be fully disclosed. For example,
the FTC says that if a blogger gets a free video game to evaluate and review,
he must clearly and conspicuously disclose that he received the game for free. Other
examples refer to the dissemination of information through other "consumer-generated
media." Presumably, a self-published e-book could be a form of "consumer-generated media."
For at least these reasons, self-publishers of blogs, e-books or other media
should become familiar with these FTC guidelines. Failure to comply can result
in liability for the endorser.
However, the burden of compliance and risk of liability do
not fall just on the journalists/endorsers. Rather, the FTC guidelines impose
significant obligations on the part of advertisers, too.
The FTC guidelines require advertisers to advise the "endorser"
that their connection needs to be disclosed. Additionally, the guidelines state
that advertisers should have procedures in place to monitor the endorsements for
compliance. Advertisers are subject to liability for false or unsubstantiated
statements made through endorsements, or for failing to disclose material
connections between themselves and their endorsers.
Another aspect of the guidelines relates to "expert"
endorsements. Whenever an advertisement represents, directly or by implication,
that the endorser is an expert with respect to the endorsement message, then
the endorser's qualifications must in fact give the endorser the expertise that
he or she is represented as possessing with respect to the endorsement.
The guidelines also address endorsements by organizations,
especially expert ones. According to the guidelines, such endorsements are
viewed as representing the judgment of a group whose collective experience
exceeds that of any individual member, and whose judgments are generally free
of the sort of subjective factors that vary from individual to individual. Therefore,
the FTC requires that an organization's endorsement must be reached by a
process sufficient to ensure that the endorsement fairly reflects the
collective judgment of the organization. Moreover, if an organization is
represented as being expert, then, in conjunction with a proper exercise of its
expertise in evaluating the product it
also must comply with various provisions regarding experts.
In order to comply
with these FTC guidelines, journalists, advertisers and other organizations
should seek legal counsel to become familiar with these requirements and, as many companies are
doing, develop policies and procedures for complying.