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  • A Brief Overview of the FDA Hearings on Social Media Advertising

    Tony DiResta 5:04 am on February 1, 2010 | 0 Comments Permalink | Post Your Comment!
    Tags: ,


    Please join the conversation and post your comments here as well as pass this link along to encourage others to submit their thoughts.  The more people, businesses, etc. that we have involved in this conversation the more robust and positive our outcome will be for the industry.  Be part of the solution – participate, advocate and get involved. WOMMA will be submitting Comments to the FDA, which are due on February 28, 2010. The comment period will close on February 15, 2010.

    *********************************************************************************

    On November 12 and 13, the FDA held formal hearings into the application of social media platforms to drug and medical device advertising.  Over fifty presentations were made to an FDA panel, and the key points of the presenters were:

    •    There are important benefits and uses of Internet, Web. 2.0, and user-generated content for gaining information about health care issues.  In particular, these platforms:
    ◦    Provide valuable information to consumers;
    ◦    Provide valuable information for professional-only communities (social media serves like conferences and journals to professionals); and
    ◦    Enhance doctor-patient relationship (as the consumer is more engaged in process).

    •            The Internet environment has no limits on time (TV) or space (print); thus, it is better equipped to give consumer more meaningful risk/balanced information.

    •    Consumers are reasonably savvy about their ability to navigate on-line, and  to get heath care information.  Accordingly,
    ◦    Links and hyper-links are very useful
    ◦    “One-click” Rule is appropriate to obtain risk information

    •    Social media will expand.  It’s here to stay.

    •    There can be severe consequences of FDA inaction or over-regulation of social media:  There can be a “chilling effect” on brands/pharma, such that companies will decide to avoid social platforms for education and promotion.  If that were the case, consumers would obtain inaccurate or incomplete information; one commentator noted that “snake oil salesmen” would take over.

    •    Presenters proactively provided criteria to determine when brands are responsible/accountable, and subject to regulation.  One presenters noted that the key considerations are whether there is creation, collaboration, and compensation by the company.

    •    There was much concern about SideWiki, because a company has no control over content, and some adverse event reports have been fabricated.

    •    
The FTC Guides on Endorsements and Testimonials are useful to determine:
    ◦    Sponsorship / Responsibility / Liability; and
    ◦    Disclosures:
    ▪    Content:  Disclosures of material connections; and
    ▪    Format:  Dot.com disclosures (clear and conspicuous standard).

    •    The health care on-line, information-seeking consumer is different from other on-line consumers who evaluate advertising.  With respect to drugs, consumers make “considered” purchases.  In contrast, for retail objects or other consumer goods, consumers make “impulse” purchases.

    •    Brands/pharma need to have a Social Media Policy.  This is consistent with the FTC call for advertisers to have policies that train and monitor their speakers.

    *********************************************************************************
    Please join the conversation and post your comments here as well as pass this link along to encourage others to submit their thoughts.  The more people, businesses, etc. that we have involved in this conversation the more robust and positive our outcome will be for the industry.  Be part of the solution – participate, advocate and get involved. WOMMA will be submitting Comments to the FDA, which are due on February 28, 2010. The comment period will close on February 15, 2010.

     
  • FDA Responds to Questions About the Recent Hearings

    Tony DiResta 12:50 pm on December 31, 2009 | 0 Comments Permalink | Post Your Comment!
    Tags: DDMAC,


    Below is a link that provides answers from DDMAC to questions provided to the FDA by some bloggers.  While there is, as a practical matter, very little news or content based on the limitations of their own internal policies on preparing guidance documents, there are three points worth noting:

    1.    The recent hearings and formal comments period are only part of the input the FDA will seek and receive;
    2.    The FDA encourages companies to have internal policies on social media; and
    3.    The FDA denies the suggestion that it had a “one click” rule on risk information that was recently changes by their warning letters.

    http://ignitehealth.blogspot.com/2009/12/fda-responds-to-questions-about-next.html

     
  • The Role of the FTC in Word of Mouth and Social Media Marketing

    Tony DiResta 5:21 pm on November 23, 2009 | 0 Comments Permalink | Post Your Comment!
    Tags: Chuck Harwood, ,


    Here is a photo taken from my session at the WOMMA Summit 2009: The Role of the FTC in Word of Mouth and Social Media Marketing presented by Chuck Harwood, Assistant Deputy Director – Bureau of Consumer Protection

    FTC Panel

    From left to right:
    Anthony DiResta
    (WOMMA’s General Counsel and Partner at Manatt, Phelps & Phillips, LLP)
    Jory Des Jardin (Co-Founder and President, Strategic Alliances at BlogHer)
    Sean Corcoran (Interactive Marketing Analyst at Forrester Research)
    Chuck Harwood (Assistant Deputy Director, FTC Bureau of Consumer Protection)

     
  • FTC Staff Responds to Questions from WOMMA Members

    Tony DiResta 8:50 pm on November 18, 2009 | 0 Comments Permalink | Post Your Comment!


    The views expressed here are those of Charles Harwood and not necessarily the views of FTC Commissioners or other FTC staff members.

    Current commentary and constitutionality:
    Q. How does the FTC respond to some recent commentary that the Guides may present constitutional questions as it applies to “new media,” allegedly because on-line communicators are being treated differently from communications made through traditional media, or that on-line speech is being chilled or restricted?

    A. The Guides do not raise significant constitutional issues. The Guides apply only to sponsored advertising messages, that is, commercial speech. Online commercial speech that is misleading is subject to the same restrictions as traditional advertising. Moreover, the Endorsement Guides apply across the board. The issue is – and always has been – does the audience understand the reviewer’s relationship to the company whose products are being reviewed? If yes, then a disclosure isn’t needed. If no, then a disclosure is needed. Here’s why that’s the case. For a review in a newspaper, on TV, or on a website with content similar to what you’d find in a publication or on TV, it’s usually clear to the audience that the reviewer didn’t pay for the product being reviewing. It’s their job to write reviews and no one expects that they paid for what they’re reviewing. But in other instances – for example, on a personal blog or social networking page – the reader wouldn’t expect the reviewer to have a relationship with the company whose products are mentioned or reviewed. Disclosure of that relationship helps the audience evaluate potential bias and avoid deception.

    Implementation and effective date:
    Q. The effective date of the Guides is December 1, 2009. Are current advertising campaigns using social marketing platforms that are scheduled to run past December 1 or are to be rolled out before December 1 subject to the new revisions or examples provided in the Guides?

    A. We recognize that some current campaigns might run past December 1, and that others might be in final form already, even though they haven’t rolled out yet. We certainly encourage everyone to bring their campaigns into compliance with the Guides by December 1 if they can, but we realize that this might not be possible in every case. However, the longer a campaign is in effect after December 1, the more we would expect to see changes made to reflect the principles articulated in the Guides. The fact that a campaign was rolled out before December 1 will not protect an advertiser from scrutiny indefinitely.

    Disclosure challenges:
    Q. How do the requirements for “material disclosure” apply to social media platforms that have a limited number of characters, like Twitter, or to visual platforms that have a limited capability?

    A. As noted above, the requirements apply across-the-board. Social media platforms should develop protocols that give consumers the information they need to evaluate sponsored statements. For example, hashtags such as “#paid” or “#ad” only use 5 and 3 characters, respectively. If a particular medium cannot accommodate the requisite disclosure, the staff believes that an advertiser should not use that medium for that particular advertising message.

    “Clear and conspicuous” standard: Guidance and role of self-regulation:
    Q. Will the FTC provide any business guidance on the application of the “clear and conspicuous” standard for on-line disclosures? What role can self-regulation play here? Will the FTC consider partnering with WOMMA to educate the industry?

    A. Because of the almost infinite number of ads that are possible online, the Commission will – as it does in most other contexts – apply a performance standard with respect to these disclosures, rather than defining specific requirements for them. In a nutshell, the question is whether, in the context of the entire ad, consumers will likely see and understand the information that is being provided to them.

    WOMMA members might want to consult the Commission’s “Dot Com Disclosures: Information about Online Advertising” for guidance, which is available at http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus41.pdf. And we believe WOMMA and other industry self-regulatory groups can play an important role in educating advertisers and those who work with them about how the importance of making their disclosures clear, conspicuous, and meaningful to consumers.

    Policies by Advertisers: Guidance and role of self-regulation:
    Q. Will the FTC provide any business guidance on the content for the policies that are required for advertisers to educate, train, and monitor their social marketing agents? What role can self-regulation play here? Will the FTC consider partnering with WOMMA to educate the industry?

    A. The staff is working to develop education materials that will be available on the FTC website, and also plans to participate in programs addressing these issues.
    The Commission has long been a strong supporter of industry self-regulatory programs. In this specific context, industry groups such as WOMMA can play an important role by articulating and widely disseminating the standards that should guide the conduct of both marketers who use social media, and individuals who act on their behalf.

    Enforcement of the Guides; role of self-regulation:
    Q. How does the FTC intend to monitor compliance by both advertisers and bloggers (sponsored agents) with the Guides? What role will complaints by consumers, business competitors, and consumer groups play in initiating an investigation concerning compliance with the Guides? How can self-regulation play a part in policing the industry? What can WOMMA do to assist in preserving the integrity of the industry through its enforcement of its Code of Ethics and Standards of Conduct?

    A. Our primary focus will be, as it always has been, on advertisers, not on consumer endorsers. Moreover, we will not be concentrating our resources specifically on advertising claims disseminated by social media. Rather, our goal will continue to be to protect consumers from misleading claims regardless of the medium by which they are disseminated.

    We do not bring law enforcement actions based on, or to enforce, the Guides. The Guides are not binding law. They are intended to be educational – to inform advertisers and others how the Commission will view the use of endorsements as it enforces the prohibition in Section 5 of the Federal Trade Commission Act against deceptive and unfair practices.

    We assume that the targets of our law enforcement actions will come to our attention by the same means as always, including the staff’s own viewing of ads and our monitoring of current events and advertising trends, consumer complaints, competitor complaints, and referrals from self-regulatory bodies.

    Without knowing more about what WOMMA is doing to enforce its Code of Ethics, it is hard to say what else should be done, but this sounds like a good topic for future discussions. However, the staff believes that WOMMA’s longstanding support for transparency in the use of social media is fully consistent with the principles embodied in the revised Guides, and will help both preserve the integrity of the industry and protect consumers.

    Celebrity:
    Q. What is the definition of “celebrity” for purposes of the Guides?

    A. Although the Commission has not formally defined that term, the basic question is whether the individual is known to a significant portion of the viewing public, so that consumers seeing that person endorse a particular product or service are likely to assume that he or she would not appear in an advertisement without being paid for his or her time. If consumers assume that the individual is being compensated, they are not misled if the advertisement fails to disclose that information.

    Product placements:
    Q. Do the disclosure requirements in the Guides apply to “product placement” or “branded entertainment” used by advertisers in contexts such as television shows, video games, or in movies?

    A. That depends on whether claims are being made for the product. If so, then the rationale that lies behind the principle that material relationships between advertisers and endorsers should be disclosed applies. Indeed, the Commission can initiate a law enforcement action if false or misleading claims about the product are made through the product placement. However, if the product simply appears on onscreen without anything being said about it, claims being made about it, or even comment being made about it, then the rationale would not appear to be present.

    I should also note that the Federal Communications Commission has regulations regarding disclosure of product placement and is currently considering the issues of sponsorship identification that arise from the use of so-called “embedded advertising” on broadcast television and radio and cable television, so that the FTC staff’s view is not the only one that advertisers should consider on this issue.

     
  • FDA Hearings on the Use of the Internet and Social Media

    Tony DiResta 9:08 pm on November 16, 2009 | 0 Comments Permalink | Post Your Comment!
    Tags: , Internet, Social Media


    Writes John Bell, “I attended most of the the two day FDA Hearings on use of the Internet and Social Media and was pleasantly surprised. The agenda was jam-packed. It was like speed-dating or some other rapid-fire challenge. While I was skeptical of the format and whether there would be substantive suggestions and ideas, both worked out well.”

    http://johnbell.typepad.com/weblog/2009/11/womma-looks-at-the-fda-social-media-hearings.html

     
  • Sponsored Social Media, Now Regulated

    Tony DiResta 2:31 pm on October 30, 2009 | 0 Comments Permalink | Post Your Comment!
    Tags: , ,


    Reprinted and/or posted with the permission of Daily Journal Corp. (2009).

    October 28, 2009
    By Anthony DiResta

    A couple of weeks ago, the Federal Trade Commission released its highly anticipated Guides on Testimonials and Endorsements. Simply put, blogging is now a regulated industry.

    Although the FTC has attempted, in recent days, to soften the blow of this news, and to explain the Guides’ consequences, it would be a mistake to examine the Guides in isolation. State attorneys general can apply the Guides under state laws that involve deceptive and unfair advertising. Plaintiffs’ lawyers can use the Guides in consumer class action litigation. Advertisers can use the Guides to challenge their competitors’ marketing campaigns.

    Thus, the Guides must be taken seriously and soberly. Unfortunately, there has been a great deal of misinformation and contrasting interpretations about the Guides floating around the past couple of weeks – and I believe we need to take a deep breath, exhale, and look at a three central issues.

    First, one of the agency’s central goals was to examine the role of social marketing and apply well-established regulatory and legal principles to Web 2.0 or emerging social media platforms. The FTC expressly noted in its analysis of new media that by the year 2011, the amount of money to be spent on social media marketing will be $3.7 billion.

    Digging deeper reveals a couple underlying themes in the agency’s analysis. One is that the use of social platforms by consumers for commercial purposes is pervasive and wide-spread. The other is that the impact of social marketing is persuasive to consumers.

    From a 30,000 feet perspective, I believe the FTC perceives a changing paradigm in advertising and marketing, and desires to scrutinize the consumer impact of emerging technologies as marketing platforms. In a Web 1.0 or the traditional media environment, the role of the marketer was to disseminate communication to a passive consumer. Now with Web 2.0, consumer-generated media, the consumer is no longer passive; he or she has control of the information. As such, the agency apparently concluded that the role of marketer has fundamentally changed: advertisers are not just to “advertise to” but to “engage with” the consumer.

    Second, while coming to grips with this new paradigm, the FTC laid down the foundation for potential liability of advertisers and bloggers (or speakers) alike in regards to “sponsored” communications that constitute “advertising messages.” Specifically, the advertiser or brand is responsible for the activities of the agents or representatives of the message, and the blogger or speaker is responsible for inappropriate disclosures of “material connections,” unsubstantiated claims, or other misleading or deceptive statements to ultimate consumers.

    Unfortunately, the FTC failed to clarify the parameters of this potential liability. For example, the FTC has directed that advertisers or brands must adopt policies and practices that educate or train the ultimate speaker about what disclosures are necessary, to ensure that whatever claims made are substantiated, and to monitor those communications. But, as a practical matter, just what is expected? How much training is required, and in what format? What is required to fulfill the duty to monitor and for how long?

    Third, notwithstanding the obvious frustrations presented by the Guides, these challenges present opportunities, presenting a significant role of self-regulation – and the industry must be willing to step up to the plate. Indeed, the FTC recognized the role of self-regulation, citing with approval to the Code of Ethics and Standards of Conduct adopted by the Word of Mouth Marketing Association.

    I see self-regulation playing a significant role in filling the voids and ambiguities presented by the Guides. For example, industry should adopt criteria and standards for what constitutes adequate and meaningful disclosure. Furthermore, brands and advertisers should adopt key principles for social marketing policies that articulate reasonable procedures for training and monitoring of their message carriers.

    Sponsored social media is now a regulated industry. The Food and Drug Administration is now about to study the use of Web 2.0 in drug advertising, so it is crystal clear that governmental scrutiny will not go away. Yet, how industry responds in the coming months will likely be evaluated by the government as an indicator of whether private stakeholders can be trusted to preserve the integrity of social marketing.

     
  • WOMMA Creates a Legal Affairs Committee

    Tony DiResta 3:28 pm on October 16, 2009 | 1 Comments Permalink | Post Your Comment!
    Tags: , Legal Affairs,


    Legal Affairs CommitteeWOMMA is pleased to announce that it has formed a Legal Affairs Committee.

    The companies comprising this Committee include
    lawyers and senior executives from:

    Burger King;
    Coca Cola;
    DuPont;
    General Electric;
    Intuit;
    Kraft;
    MasterCard;
    Nokia;
    Product Partners;
    Royal Caribbean Cruises; and
    Sony Online Entertainment.

    The purpose of the Committee is to:  (i) monitor regulatory and legal developments impacting the social media industry; (ii) provide thought leadership to WOMMA members, industry officials, and regulators through educational programs and other forms of outreach; (iii) identify effective compliance methods and promote “best practices”; and (iv) advocate the interests and appropriate development of the industry before governmental agencies, industry officials, and adjudicatory proceedings.

    Obviously, with the release of the Guides on Testimonials and Endorsements last week by the Federal Trade Commission, and the consequences of these Guides on social marketing, including the compliance requirements for brands and bloggers alike, the value of such a Committee to WOMMA and its members is enormous.  WOMMA thanks these companies and their representatives for their participation and commitment.

     
  • Three Significant Changes to the Guides

    Tony DiResta 3:32 pm on October 6, 2009 | 3 Comments Permalink | Post Your Comment!
    Tags: , , , ,


    Yesterday, the Federal Trade Commission released its long-awaited Guides concerning endorsements and testimonials.  The Guides were last updated in 1980, and they are to go into effect on December 1, 2009.

    There are three significant changes to the Guides that impact not only advertisers and the marketing practices of all brands and businesses, but bloggers and other social media communicators.

    *************************************************************************

    1.  “Results My Vary” Is History: Disclaimers describing unusual results, such as “results may vary” or “results not typical” are history.  The Guides now eliminate the “safe harbor” that was in place for almost thirty years, and the FTC now requires advertisers to provide the same substantiation that would apply if they made performance claims directly.  Rather, for performance or typicality claims, the Commission mandates a disclosure that describes “the generally expected performance in the depicted circumstances.”   In response to criticism set forth in Comments to the Commission by industry groups, the FTC makes clear, however, that “advertisers are not required to identify a “typical consumer” of their product and then determine what result that consumer achieved.”   The agency also notes that the Guides “do not prescribe a uniform one-size-fits-all disclaimer.”

    *************************************************************************

    2.  Social Media Marketing Is Impacted Through Required Disclosures: The FTC applies these Guides to new consumer-generated media.  The disclosure of “material connections” between advertisers and endorsers in all contexts is now required.  Therefore, cash payments or other consideration provided by advertisers to their representatives must be disclosed.  Relationships between the advertisers and their endorsers that entail connections that consumers would not expect also have to be disclosed.

    As a practical matter, this is nothing new for WOMMA members, given the Code of Ethics and Standards of Conduct for its members.

    Significantly, however, advertisers as well as endorsers (which include bloggers or other agents of the messaging) can be held liable.  The FTC says that “advertisers who sponsor these endorsers (either by providing free products – directly or through a middleman – or otherwise) in order to generate a positive word of mouth and spur sales should establish procedures to advise endorsers that they should make the necessary disclosures and to monitor the conduct of those endorsers.”

    In response to a request for a clarification by WOMMA, the FTC notes that not all communications touting a particular product or service constitutes an “endorsements” that requires any disclosures.  Rather, it is “sponsored speech” that is covered by the Guides.

    Importantly, compliance with WOMMA’s Code of Ethics and Standards of Conduct minimizes the risk for challenges by law enforcement officials.

    *************************************************************************

    3.  Standards Concerning Celebrity Endorsements Have Changed: Celebrity endorsements are addressed in the Guides.  They now provide that both advertisers and celebrity endorsers may be liable for false or unsubstantiated claims made in the endorsements, or for failure to disclose material connections between the advertisers and endorser.  Furthermore, the Guides now state that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside of the context of traditional ads, such as on talk shows or in social media platforms.
    These Guides reflect a key pro-consumer shift that can not only impact the basis for governmental investigations but influence consumer litigation and advertising challenges.

     
    • Debra Bass 12:05 pm on October 7, 2009 Permalink

      Tony’s comments are very helpful and much appreciated. I work with nonprofit associations and I presume the law applies equally to them but wondering if there are any wrinkles for nonprofits. they all send out free books asking for book reviews with the intent of generating testimonias, but these reviewers are not “paid” per se. Is this type of marketing activity safe? or is disclosure about receiving a free book necessary?

    • Dan Rua 9:11 am on October 28, 2009 Permalink

      @Debra: The new examples provided by the FTC address this directly — and make no distinction about nonprofits. Whether it’s a book, laptop, free pass, cash or other forms of value exchanged, resulting in a testimonial, disclosure is required. That doesn’t mean your marketing activity isn’t safe, it just means it needs a bit more structure to ensure education, disclosure and monitoring by any participating bloggers. You can see my more detailed comment on the topic, along with a link to FTC Compliance Made Easy, on Tony’s post for disclosure feedback: http://womma.org/diresta/2009/09/an-introduction-to-meaningful-and-adequate-disclosure/comment-page-1/#comment-5

    • FTC Guides on Blog Endorsements Start Dec 1 10:26 pm on November 20, 2009 Permalink

      [...] DiResta also neatly summarizes three significant changes in the new guides that impact bloggers, social media communicators, advert… in his post at WOMMA (Word of Mouth Marketing [...]

  • FTC Publishes Final Guides Governing Endorsements, Testimonials

    Tony DiResta 10:56 am on October 5, 2009 | 1 Comments Permalink | Post Your Comment!
    Tags: , ,


    WOMMA is providing the FTC ‘s press release on the revised Guide (http://www.ftc.gov/opa/2009/10/endortest.shtm), which was just announced this morning. WOMMA will be providing further information on the Guide and so you will receive multiple emails on the Guide so please play close attention to this communication. It is our intent to host a webinar for members explaining the overall Guide, what it means to your business and how to use the Guide going forward. We will also be providing a white paper on the Guide for members only as well. Again, please look for further communication today.

     
    • gregw 11:50 am on October 7, 2009 Permalink

      The gist of the new guidelines is that if a Blogger receives book or product to review, they have to post a disclosure along with the article, or post, which reveals the nature of the gift or receipt of payment for publishing the review.
      These are guidelines at the time of this writing and are not rules or laws. But, a fine of $11,000 could be levied against a Blogger who did not comply, and was caught or turned in by a competitive blogging site.

  • An Introduction to Meaningful and Adequate Disclosure

    Tony DiResta 9:41 am on September 23, 2009 | 1 Comments Permalink | Post Your Comment!
    Tags: , , Podcast


    The FTC Guides that are to be released very soon are certainly going to require disclosure by bloggers or representatives of the advertisers of material information.  For example, the FTC proposed requiring disclosure of any compensation or consideration received in exchange for the commentary; and we can expect the agency to require appropriate disclosure in several contexts.

    A critical question presented, then, is just what constitutes appropriate disclosure.  What’s meaningful and adequate?  How are we to know as a practical matter if we’re in compliance with the anticipated requirements?

    This past Monday, WOMMA held a teleseminar on this issue.  We had over 200 participants, and in case you did not attend, I want to provide you with a slide presentation and an edited and highlighted version:

    Watch this presentation on Slideshare!
    Watch the edited and highlighted, 11-minute version of this presentation on Slideshare!

    During the next month, WOMMA is engaged in a “Comment Period” concerning best practices, so please provide your thoughts concerning disclosure on the Living Ethics Blog which is open until October 14.

    Once the Comment Period is closed, WOMMA will compile the comments and propose guidelines on disclosure and how the industry should be operating in this space.

    Thanks for your interest and participation.

     
    • Dan Rua 4:55 pm on October 14, 2009 Permalink

      Thanks for hosting this discussion; it’s importance is even more apparent with the FTC’s clarified goal of “clear and conspicuous” disclosure of material connections in testimonials. That said, I’d encourage us to be very precise about what we’re trying to define. Are we defining “clear and conspicuous”, “adequate disclosure”, “best practices”, “acceptable practices” or something else — all terms I’ve seen used around this WOMMA topic, but I don’t think they’re the same.

      My guess is that “clear and conspicuous” and “adequate disclosure” are practically the same. However, “best practices” probably means something above and beyond the “acceptable practices” set by FTC or WOMMA for “clear and conspicuous”. Although this discussion can explore all of those levels, I’m raising the topic early so we’re clear what we’re defining.

      As it relates to the term with the highest stakes, “clear and conspicuous” as required by the government, there are already many interpretations and cases discussing “clear and conspicuous”. For example Regulation P provides examples for “clear and conspicuous” disclosure of data privacy practices by banks, financial websites etc… to visitors. If we’re trying to define what is required by the FTC, I’d be wary of veering too far from existing government interpretations of that standard.

      If we’re trying to define “best practices”, I’d encourage looking to compliance tools as one of the best way to help ensure, document and audit disclosure. I’ve blogged, advertised and invested with IZEA, the only company I know of offering such tools, so I’m conflicted on this guidance. A summary of their FTC Compliance tools is here: http://izea.com/ftc-compliance-easy/ However, that brings home my distinction about “best practices” because some people (particularly anyone who replaces compliance tools with manpower) may argue that guaranteeing disclosure via tools goes above and beyond the duty of WOM marketers. Is there a duty for every WOMMA member to use best practices/tools? It’s not unusual for courts to weigh what tools are available when deciding standards of conduct — for example, the existence of music fingerprinting tools raises the legal bar for online music sites. Should WOMMA incorporate this compliance reality into their guidance?

      However, if we’re just looking for some foundational recommendations, I agree with John that a conspicuously linked “Terms of Engagement” (marketer created) is an interesting idea. However, given that such a document is marketer/campaign-specific, I’d add that conspicuously linked “Disclosure Policies” (blogger created) are an equally valuable starting point for bloggers engaging multiple advertisers. Like Privacy Policies (that also involve the “clear and conspicuous” standard), DPs can educate visitors on a variety of disclosure topics — including past engagements, ongoing engagements, how freebies/loaners are handled, family/friend conflicts, competitive conflicts etc. For example, I’m an investor that blogs about my portfolio companies constantly. A Disclosure Policy provides a place to list those investments so visitors understand the context whenever they visit my site. Once you think about conflicts in an ongoing fashion (not just campaign-specific), the value of a Disclosure Policy framework grows. There may be “best practices” above and beyond DPs, but as a foundational recommendation, they’re a great starting point for marketers to require of any site they engage.

      Again, thanks for kicking off and continuing this important discussion…



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