Bloggers must disclose freebies or discounts

 (This is a 2017 update of an article that I published in 2016 on Medium.)

Many bloggers and other writers rely on product samples or invitations to events to get what they need for their writing. This is particularly true among travel writers, especially when an article requires transportation, lodging, or meals in order for the writer to evaluate and write about a destination or the services available there. The ways bloggers disclose these relationships are as varied as the blogs on which they appear, and the rules that established publications apply to these situations vary just as much.

Writers need to be aware of both laws and practical rules. Violating either can impair a writer’s livelihood significantly.

The simple guideline is that readers should know if they are reading something based on an exchange of anything of value between the seller and the writer. If you keep this as your principle, you likely will be in compliance with both federal regulations and the requirements of your freelance clients.

The Federal Trade Commission, the agency with authority over advertising and marketing, has clear rules that were updated recently: writers must disclose freebies, discounts or other “consideration” in advance of any product mention. And, the rules apply to all media, including short form media such as Instagram, SnapChat or Twitter.

Publications are all over the map. To avoid any possibility of bias, some publications, such as at the Los Angeles Times will not accept articles from a writer who accepted free or discounted travel. Period. However, many smaller newspapers and some magazines are less strict. In many cases, this is a judgment call up to the editor.

Here are some tips on how to stay within the boundaries:

    1. Tell your editor if you plan to accept a free or discounted product or service in advance. Some publications will say no and cover the expenses instead. Disclosure in advance gives the editor a chance to decide.
    2. If you are a blogger, you must disclose every time you write about a product or service and you receive compensation or something of value from the provider of that product or service. This includes free product samples, meals, or any other item of value that is not generally available to all consumers. A generic disclosure is not good enough, unless it is obvious and precedes any product mention.
    1. Disclose that a review is based on a sample at or near the top of your review. Some bloggers put a short note above each post. Others include this detail within the text. Either may be sufficient, provided that a reader sees it before the product mention.
    1. If you link to a web page where consumers can buy a product you wrote about based on a free sample, the disclosure must appear before the link. This applies even if you do not get a share of the sale if you got something for free or a discount. If you did not get anything from the seller, have no business relationship with the seller, and are mentioning a product or service just as a convenience to your readers, no disclosure is required.
    1. On Twitter, Instagram, or other platforms that limit characters, tags like “Paid Ad” or “Ad” may be sufficient disclosures. “Affiliate” or “affiliate link” is not, because not every consumer will understand what that means. Sending a separate tweet with a disclosure is not sufficient. Many influencers are using the hashtag #ad to fulfill this requirement.
    1. Include clear disclosures on all platforms — this includes audio, video, or even SnapChat.
  1. Any links related to paid or otherwise compensated content must use the nofollow” tag. This should be used anytime a link is included because you received a sample, non-public discount or any other compensation.
Disclosure icons by Louis Gray and Jeannine Schafer.
Icon by Louis Gray and Jeannine Schafer.

If a winery pours free tastes to all visitors, you do not have to disclose that you had free tastes. However, if you got a free bottle, you must disclose it.

Where many people get mixed up is social media. The FTC does not distinguish between types of media. A Facebook post, YouTube video or newspaper article all have the same regulations. This even includes within a 140-character tweet. But it’s not that difficult. The FTC website has a thorough guide that shows how to do this with as few as three characters. Google also has a simple guide for online reviews.

In its latest update on how to handle product endorsements, the FTC emphasized earlier guidance that disclosures cannot just be a separate page on your website or buried at the bottom of the page. “It does not convey the importance, nature, and relevance of the information to which it leads,” says the federal agency. Simply putting “AD” in a tweet may be enough, however.

“You have to disclose that you were paid or got a free sample before you mention the product,” says Jana Seitzer, publisher of the Whisky + Sunshine blog. The disclosure has to be “clear and conspicuous,” according to the FTC guidance on native advertising, which applies to many kinds of blog posts, including reviews.

However, the disclosure does not need to be clunky. As long as the disclosure is clear and ahead of any links to other direct product or service reference, you can choose your own way to do it.

In a travel article, you can simply say something like, “I was a guest of [Property Name] and had a chance to see first-hand how the staff takes care of visitors.” Or, “The [Region] Chamber of Commerce hosted me for a weekend to explore the trails and scenery of the area.”

Here is how I handled a wine tasting for which I received a free (expensive) bottle of (very good) wine and a set of (not cheap) wine glasses:

In this case, the sponsor requested use of the specific hashtag, and the “Ad” tag before the hashtag complied with the rules in place at the time. Under the new guidelines, the tag needs to come before the product name. I also did a tweet at the beginning of the series that disclosed exactly what the winery provided. Note that the disclosure tweet does not satisfy the FTC guidelines. The “ad” tag or another explicit disclosure within each tweet that mentions the product is mandatory.

Following the new rules, here’s how I posted a promo for T-shirts from which I get a share of the sales:

The "AD" tag at the start of this tweet is a mandatory disclosure for compensated posts.
The “AD” tag at the start of this tweet is a mandatory disclosure for compensated posts.

I also include the “AD” tag when posting links to companies that give me an incentive for social sharing, such as this tweet endorsing a time-tracking and invocing app:

For more about “nofollow” tags, refer to Google’s Search Console or WordPress. There are many blog plug-ins to simplify this, but it’s really just a matter of adding rel=”nofollow” to your hyperlinks, like this:

<a href=”” rel=”nofollow”>Doug Levy’s blog</a>

For a fun way to incorporate disclosures into your blog, check out the handy set of of disclosure icons by Google’s Louis Gray and artist Jeannine Schafer.

If you have questions or comments, please let me know.

Disclaimer: This post is for information only and not intended as legal advice. Although I have a law degree and am admitted to the Maryland Bar, I am a journalist, not a practicing lawyer. Please consult your own attorney for advice specific to you.

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