Why Bloggers Must Disclose But Major Sites Don’t

Posted on April 5, 2013
Photo by Mike Monaghan via Flickr Creative Commons

Photo by Mike Monaghan via Flickr Creative Commons

Why don’t popular websites like Refinery 29 and Glamour.com have to disclose the fact that they have received products for free while individual bloggers do have to make such disclosures? Clearly, the editors and other contributing writers of such sites are seeded with product the same way bloggers are, but the vast majority of those sites do not include any sort of disclosure notice to muck up the look and feel of their sites (let alone the posts themselves)… why is that?

The latest guidance from the FTC (released in  March of this year) requires bloggers to clearly and conspicuously disclose when they’ve received products (solicited or unsolicited) to review on their blogs – regardless of whether or not they were paid and whether or not the review is a positive one. The expectation is that such disclosure should occur within the blog post itself, and be located as close to the relevant portion of the post as possible (aesthetics be damned…) so as to avoid any chance, however remote, of consumer confusion.

As we discussed in a prior post, the FTC’s focus on blogger compensation and disclosure is actually a good thing because it legitimizes blogging as a form of journalism. However, the law has been slow to catch up to reality, which has resulted in blogs being more highly scrutinized than print and online magazines, despite the increasingly blurry lines between these modes of journalism.

Traditionally, the FTC’s rationale has been that consumers perceive magazines (both online and offline) differently than they perceive blogs. In implementing the 2009 guidelines, the FTC stated that consumers expected that publications would receive free trial products while blogs were (and still mostly are) run by individuals, and therefore it wasn’t always apparent to a consumer whether the blogger was independently endorsing a product they had themselves purchased or whether a company had actually seeded that product for review. The FTC issued the guidelines to make it more transparent when an individual (as opposed to an entity) was giving an endorsement because the individual blogger herself presumably gets the benefit of a “free” product, whereas an editor or contributing writer for a larger publication does not (those of you who have worked in traditional media can query whether or not that is, in fact, true). So, for example, when a Glamour.com editor or contributing writer reviews a product, the FTC considers it a Glamour review. However, when I review it on my (world-renown imaginary) beauty blog, it’s my review, and I’m the one getting “compensated,” so the review becomes an endorsement instead of a pure review, and that is why disclosure is essential. Right or wrong, that’s been the general perception and rationale to date. Admittedly, these distinctions are now laughable and one would have to think that, over time, the interpretation and enforcement of truth-in-advertising laws will become much more uniform across all media.

Daniel Bellizio and Brian Igel are the founders of of Bellizio & Igel, PLLC, a boutique law firm based in New York City that counsels small businesses and entrepreneurs, primarily in fashion, the arts, lifestyles and entertainment.


14 Responses to “Why Bloggers Must Disclose But Major Sites Don’t”

  • Kelly Stallings
    Twitter: Sparkle_Core

    I love the fact that you pointed out that they are in-fact guidelines as opposed to laws. I think many bloggers get that twisted. I don’t have an issue with disclosing but I don’t appreciate them attempting to control how or even roughly where I disclose. Personally I feel like sitewide disclosures are sufficient. I also appreciate their method of just saying your disclosure in plain english in the content of the article.

  • Carleen
    Twitter: Carleenp

    Kelly, they are guidelines on how to comply with the law by the agency that enforces it. The law behind it exists in federal statutory form and under enabling acts that allow the FTC to regulate. And that agency does indeed enforce it. The first investigation action they took under their updated guides was against Anne Taylor in connection with bloggers who were not disclosing. They have since taken action against affiliates in connection with health claims on supplement sites. A site wide disclosure is NOT sufficient for bloggers, both under the view of the FTC, and under simple good ethics. Hiding a disclosure does a service to no one expect yourself in hopes of sort-of complying without really doing so at all. I also disagree with the position taken by larger sites who fail to disclose and would be very interested to see the FTC investigate that.

    • Brian
      Twitter: BI_LawFirm

      For many years now there have been laws on the books pertaining to unfair and deceptive practices as such practices relate to truth in advertising. The FTC guidelines are meant to show bloggers how to abide by the law, but they are not laws themselves. See here: http://ftc.gov/os/2013/03/130312dotcomdisclosures.pdf

      What we perhaps should have added to our post is that the FTC doesn’t have the resources or desire to actively pursue individual bloggers (as evidenced by the Ann Taylor investigation among other things). Will that change any time soon? I doubt it. The FTC has not done a very good job of relaying their message to the public.

      • Brian
        Twitter: BI_LawFirm

        Note: We sent IFABBO a revised concluding paragraph to add clarity and address these comments.

    • xlovehappyx
      Twitter: xlovehappyx

      I’ve been disclosing in post for “forever” but to be told that I MUST is not fair. And this is still confusing on some counts…
      xlovehappyx recently posted..FOTD | Coastal Scents 88 Warm PaletteMy Profile

  • Carleen
    Twitter: Carleenp

    One more note. Yes a disclosure in the content of an article, before any outgoing links or before the endorsement is sufficient. But a site-wide one in a sidebar, footer, or buried in a disclosure policy is not.
    Carleen recently posted..How To Get a Smoky Eye With Target NP SetMy Profile

  • M @StyleSizzle
    Twitter: marlenemontanez

    Totally agree with the previous poster. It’s one thing to have a Disclosure on your website, it’s another to tell me “it must be at the top” “it must be on each post” etc. Magazines do not have to offer such transparency and as a magazine editor, yes I do benefit from free things. If I’m reviewing a spa, guess what? I’ve been invited and pampered there. When I’m traveling the world for a travel article, I was sent there for free as well. Sure, newspapers and some magazines won’t accept free items and will pay for things themselves but many still do not. Rest assured all those beauty articles, recommendations and dinner reviews are because the magazine editor was invited there for free, not “the magazine”.

  • Elle

    So if 5 of my friends get together and start an online magazine or a magazine-type blog, would the disclosure rule still apply?

  • Phyrra
    Twitter: phyrra

    I’ve been disclosing since the update in the guidelines in 2009 or 2010. I’ve never had a problem with disclosing. My readers appreciate the transparency. I think if you’re not disclosing, there’s a problem.

    That said, I never knew until recently that magazines received products and services for free. I assumed that a story written in a magazine was honest when an editor said they loved a product, as opposed to the ads splashed through 1/2 of the magazine, which to me, were clearly advertising. Finding out that the stories in the magazine were also basically sponsored with no transparency have me not trusting magazines. Additionally, I finally now understand why products that I’ve felt performed poorly have been pushed and touted as #1 for years, because of paid positive reviews in magazines.

    I’ve got no problems with magazines or online magazings existing, but I think they should be required to be transparent as well. I want to read an honest opinion, positive or negative, about a product. I want to know why it works for the writer, or why it doesn’t work, or who they think it would work best.

    I don’t think it’s too much to ask for that transparency.

  • xlovehappyx
    Twitter: xlovehappyx

    Every time I think about this FTC nonsense, I get annoyed, honestly. It isn’t fair that bloggers have to insert some alarming statement about DISCLOSURE!!! but the big companies don’t. I think it’s great to be transparent and gain reader trust, but sometimes it seems like the rules get out of hand/ridiculous…And most people know that if a celebrity/magazine mentions a product, they’re getting paid to do so, but then again, a LOT of people don’t know that and believe that the celeb truly uses or likes the product. Love Maegan wrote an excellent post on this, search her blog for it! :)
    xlovehappyx recently posted..FOTD | Coastal Scents 88 Warm PaletteMy Profile

  • Kristofer Marks

    My own review of the guidelines leads me to conclude that a blogger receiving free products would be exempt from disclosure requirements if the blogger does not promote or advertise the products. If the review is conducted the same way and posted in the same fashion as all the other blog’s review’s, it is not an endorsement. This is a clear case if the blog is normally given to reviews. Sec. 255.0, Example 8 speaks to this point particularly well. If the blog is not normally given to reviews, than the argument may be more nuanced–posting a lone product review amongst a geological history of the Appalachian Mountains may be construed as being knowingly likely to appear to the casual consumer as a promotion.

    Major sites ‘don’t [have to disclose]’ because they can afford more competent legal representation able to properly advise them. Bloggers: the only thing that binds you to disclosure (in reviews–not in advertising) is ethical journalism and your own morals. If you are benefitting from receiving free products, than you must ask yourself if that is coloring your review. That is a hard question to answer and you may have to dig deep. Bellizio & Igel, PLLC: I am available for hire if you need some help in your research departments.

Trackbacks & Pings

  • Why you should never sell PR Samples says:

    […] You readers may recognize the product you are trying to sell! Not disclosing that you have received it for free might lead to negative ramifications. FTC regulations should always be considered! See more on that here! […]

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