BP/G Radio Intellectual Property Podcast

Guests:

Mary K. Engle, Associate Director, FTC Division of Advertising Practices

Phil Wilson, Principal, RemainComm; Director, Association of Downloadable Media

On December 1, 2009, the FTC’s updated Guides for the Use of Endorsements and Testimonials in Advertising went into effect.  The Guides, last updated in 1980, were subject to a general revision, with the primary substantive change relating to consumer testimonials and typicality of result disclosures.  However, the areas of greatest interest and controversy about the revised Guides have related to online advertising and whether the FTC’s focus on social media unduly interferes with the organic flow of commercial speech on the Internet.

There are certainly some issues to be fleshed out related to when a blogger becomes a paid (versus enthusiastic) endorser.  One would also hope for equal treatment of on- and off-line promotional and journalistic activities.  Regardless, the revised Guides do not (and cannot) change the law of endorsements and testimonials specific to online advertising; rather, the Guides simply provide the FTC’s view of how the existing law on endorsements and testimonials applies to the virtual world.   A little secret: the FTC is too busy to chase individual bloggers.  But don’t take our word for it.  Read the Guides and listen to Mary Engle of the FTC and Phil Wilson weigh the impact of the Guides on the wild world of digital marketing.  And Phil says: ban the word “rogue!”  FTC action to follow.

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