Disclosure and other rules every wine blogger should know
Note: Please consult your own attorney for legal advice specific to your situation. This article is for information and general guidance only.
Most of us who blog or write about wine don’t think about the Federal Trade Commission’s disclosure rules and probably don’t think about copyright laws until we have a problem. At the recent Wine Bloggers Conference, two of my legal compatriots and I presented on why this has to change. Since last year, when I wrote this guide, the FTC has stepped up enforcement.
Attorney Ruth Carter, who literally wrote the book on The Legal Side of Blogging, joined via video. She gave an update on how the FTC has started taking action against bloggers and social media “influencers” who failed to disclose that they got free products or were paid in exchange for mentioning a brand or a product.
Generally, free samples are treated the same way as cash payments are by the FTC: If a company gives you something and you write about it, your readers need to be told before they act on your advice.
Honolulu attorney and wine blogger Seth Buckley gave an intro to copyright law. He also discussed why even hobby bloggers might consider forming an LLC or other business entity for their blog. (See below for Seth’s slides, as well as mine.)
And I presented some examples of how to disclose samples, free trips or other “consideration” without getting too clunky. The main thing is that the disclosure has to come before any link to a brand or product website.
After the session, there has been a lot of discussion about how and whether people who review wines must disclose that they receive winery samples. The answer is unequivocally yes. That’s the easy part. “If you received a free or discounted product to provide a review somewhere, your connection to the company should be disclosed everywhere you endorse the product,” says the FTC. This applies even if your review is entirely voluntary and the samples were received without conditions.
What is ambiguous is exactly how that disclosure has to be made. The FTC gives considerable leeway, with the guiding priniciple that readers have a right to know whether there is a possibility that a review is anything other than objective.
Can I do a blanket disclosure at the top of my blog that says some of my reviews are based on samples?
This is valid only if the disclosure is visible at the top of every review, so a single disclosure on the home page is not sufficient. It has to be seen by people reading each review or seeing each video.
Must I use the “AD” tag every time I mention a product or brand if I got a free sample from them?
It depends. You must have some form of clear disclosure that you got paid or got something for free or if you get a cut from sales, or receive some other benefit. Where you put the disclosure is context-specific. Here’s how the FTC puts it:
We’re not necessarily saying that “#ad” has to be at the beginning of a post. The FTC does not dictate where you have to place the “#ad.” What the FTC will look at is whether it is easily noticed and understood. So, although we aren’t saying it has to be at the beginning, it’s less likely to be effective in the middle or at the end. Indeed, if #ad is mixed in with links or other hashtags at the end, some readers may just skip over all of that stuff. (Source: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#ftcactapply)
The FTC specifically calls out Instagram product mentions, noting that the disclosure has to be visible without clicking on a “more” link. That means that it has to be within the first three lines in some cases. On Snapchat or other visual media, the FTC suggests superimposing a disclosure on top of your images.
What happens if I link to a site where people can purchase a product that I mention?
If you link to a merchant website for the convenience of your readers and you have no relationship with that merchant (i.e., you get no benefit from sales via your link,) then no disclosure is required. However, if you use an affiliate code and earn commissions from referrals, a disclosure in advance of the link is mandatory.
Carter and others advise putting the disclosure in advance of the product mention as “best practice.”
If you do get cash from sales, then the disclosure needs to be especially clear — and in every tweet, Facebook post, or anything else where the brand or product is mentioned.