How bloggers are handling the new FTC affiliate disclosure rules

It’s been almost two months since the U.S. Federal Trade Commission implemented new rules about how affiliate links can be used (or not) in blogs and social media. The rules went into effect Dec. 1, and since then I’ve been seeing bloggers and online marketers use a variety of strategies for complying. At the same time, the FTC itself is still trying to figure out how it’s going to enforce these rules, especially for bloggers.

For those who may not be familiar with this issue, here’s the basics.

Affiliate links. Affiliate links are hyperlinks, often inserted into blog posts or other social media channels, that pay the writer a commission if someone clicks through that link and makes a purchase. These were originally pioneered by Amazon and other major online retailers, and have become a valuable marketing tool for all sorts of online merchants and publishers, and a major source of income for lots of bloggers.

The FTC rules. The FTC’s new rules [pdf] essentially say that if you are get a free sample, or if have some kind of link to a seller (for example, you’re an employee) or you have an affiliation that could bring you income, you have to disclose it you review, endorse or otherwise give a testimonial. The new rules also put new restrictions on the use of testimonials and endorsements in all kinds of advertisers, but I won’t go into that here — I’m focusing on how bloggers are handling the affiliate disclosure rule.

The reason this has become such a big issue is, to put it bluntly, that a lot of people were inserting affiliate links into reviews and not disclosing that they were getting paid when people purchased through those links. I think a lot of people using affiliate links to make money were concerned that once they began to disclose the relationship, people would stop clicking and they would make less money. It’s a reasonable fear. After all, if someone is being paid when you buy a product through them, aren’t you likely to take their endorsement more skeptically, and also less likely to make that purchase?

I’m not going to go into whether or not the FTC should be regulating this, and I’m not going to go into whether or not bloggers should disclose the relationships in the absence of regulations that force them to. However, suffice it to say that a lot of bloggers are now disclosing these relationships in a variety of ways.

Now, on to some examples.

Jonathan Fields – Awake @ the Wheel

Blogger Jonathan Fields, the original career renegade, is using a very short disclosure next to the affiliate link.

Jonathan Fields discloses an Amazon affiliate link

I like this approach because the minimal (aff link) doesn’t get in the way of the writing. I don’t know, however, if this is enough disclosure to satisfy the FTC’s requirements. Fields is a lawyer by training, so I assume his reading of the FTC guidelines is a bit more rigorous than mine. But, what one lawyer does isn’t legal advice per se.

World’s Strongest Librarian – Josh Hanagarne

Over at World’s Strongest Librarian (a wonderfully written blog, by the way) Josh Hanagarne inserted affiliate links into his review post, and then disclosed them near the end.

Affiliate disclosure near the end of the post

I like this disclosure because it fits in so well with Josh’s writing style and his flow. Does it meet the FTC’s legal requirements? I have no idea. He is clearly trying, though, so that should count for something.

Michael Hyatt

Christian publishing house executive Michael Hyatt has come up with a standard set of disclosures to insert at the end of blog posts (in small gray text), depending on what he needs to disclose (an affiliate link or having received a free review copy, for example).

Michael Hyatt affiliate disclosure

Disclosure text - even when it's not needed

I’m not a lawyer, but I’m pretty sure there is no requirement that you disclose that you don’t have any kind of material disclosure. Hyatt does have others (click on the link above to read his post), so I’m not sure if I think the disclosure of no relationship is overkill, or if it’s clever. If readers get used to seeing that small block of gray disclaimer text at the bottom of every post – even when it’s not necessary — after a while they’re likely to start ignoring it. In effect, it becomes invisible — at least to regular readers.

I’m NOT, by the way, saying that’s Hyatt’s intention. His reading of the FTC guidelines (or his lawyer’s) may lead him to believe that’s required, or he may feel that it’s the best thing to do in the spirit of full disclosure for his readers. I don’t know. But I suspect that the effect over time is to cause a sort of “disclosure blindness.”

Other options

There are certainly lots of other disclosure options out there. If you haven’t seen them yet, start looking. I guarantee you’ll start to notice them all over the place. I included an affiliate disclosure in my review of Beyond Blogging last week. I think my disclosure meets the FTC’s guidelines, but I’ll say it again — I’m not a lawyer, and I don’t play one on this blog.

One web site that’s trying to create a standard set of disclosures anyone can use is Cmp.ly. The idea of short links to a compliance statement is tempting. But the badges the site offers to provide disclosure with the blog posts seem, well, ugly. I suppose that’s the point — to make an prominent disclosure, but it’s not very elegant or satisfying.

All of this raises a bunch of questions that, as far as I know, there aren’t really any good answers for. Including:

  • Are any or all of these affiliate disclosure methods adequate for the FTC? I guess we won’t know until the agency goes after someone for a perceived violation. In fairness, FTC officials have said it’s not their intention to be heavy handed with enforcement and go after a lot of individual bloggers.
  • Is just saying “affiliate link” enough? I know we (me and all of my charming, intelligent and well-informed readers) know what an affiliate link is. But does everybody? That’s basically the disclosure the myself and a lot of others are using right now, but I don’t know if those two words by themselves will meet this still-undefined FTC standard.
  • If there are old affiliate links on your blog that were published before the FTC’s rules took effect, do you have to go back and add disclosure to all of those? I am guessing that most lawyers would say yes — erring on the side of caution. But again, I really don’t know.

The bottom line is you should probably disclose something in some fashion. How much and how you disclose seems very much up in the air. There’s an attorney in Texas, Mike Young,  who apparently provides legal services for Internet marketing businesses. He’s got some blog posts and some ebooks on his site that might be worth checking out. In full disclosure – I don’t know much about him so I can’t say if his advice is good or not.

Bonus tip: Businesses considering how to comply with these rules should take a look at these suggestions from my RLF Communications colleague Aleasha Vuncannon. These aren’t legal advice, but they are based on solid, ethical public relations principles.

Are you using affiliate links on your blog? How are you disclosing them? As a reader of blogs, what kinds of disclosures would you like to see? And would those make you more or less likely to trust what a blogger is saying, and click on the link? Please share your thoughts below.

5 responses to “How bloggers are handling the new FTC affiliate disclosure rules”

  1. You are right. We really do not know exactly what language the FTC will find sufficient. It will take a few enforcement actions to get a good feel for it. In the meantime, it would seem that any disclosure is better than no disclosure. I recently discussed the FTC Guide on my legal blog – In the Eyes of the Law at http://www.kimberlyhouser.wordpress.com. Your blog is very informative and gave me some great ideas on future posts. Thank you.

  2. Mark Tosczak says:

    Thanks Kimberly. It’s good to hear that a lawyer like yourself agrees with my basic assessment that we don’t yet exactly what the disclosure needs to look like. But, you’re of course right – any disclosure is better than no disclosure. I’m also glad that you and other lawyers are writing about this issue and helping the rest of us non-legal types understand it.

  3. Social comments and analytics for this post…

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  4. Mark, I have no idea if my attempt at this will be sufficient or not. I guess we’ll know if the knock on the door comes and I’m beaten with rods by the FTC. That’s them there guys, right?

    • Mark Tosczak says:

      Let’s hope it doesn’t come to that. I thought your disclosure was pretty clear, but then, I’m obviously not a government lawyer. It would be nice if they were a bit clearer when making these rules …

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