ARCHIVE: Beauty Vloggers Are Probably Violating FTC Guidelines

In a recent article entitled, Cracking the Code of Beauty Vloggers' Authenticity, Women's Wear Daily took on the growing demand for vloggers as an alternative form of advertising beauty products, and the corresponding inquiry as to the level of objectivity in these vloggers' coverage. The publication states: "Beauty vloggers of all ages are putting forth their honest opinion on specific beauty products, but an increasing number of them have gone to work for brands and are drawing a paycheck.

This raises a question: How unbiased is the advice?" WWD's analysis does well in shedding light on the potential conflicts that come along with this new form of branding and advertising, but there's more to it than that, I think. What is not addressed is the legal aspect of such relationships, namely, the fact that vloggers are likely serving as endorsers of these brands, and thus, the role that disclaimers in connection with such testimonials is an important issue.

WWD wrote: "In January 2014, Yes To enlisted [vlogger, Ingrid] Nilsen to help design a set of limited edition wipes for the holidays. Nilsen encourages readers to check out the wipes under many of the video tutorials she posts […] Given its experience with [Nilson's site] MissGlamorazzi, Yes To is looking for a vlogger to promote its acne line." Another blogger, Michelle Phan, has a licensing deal with L'Oreal. The hawking of products by vloggers in exchange for compensation is problematic if such endorsements by vloggers are not properly executed.

The Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising state that both advertisers and endorsers may be liable for failure to disclose material connections (think: payments or free products in exchange for representation of the brand) that they share. The Guidelines also make it clear that celebrities, which the WWD article suggests vloggers are, have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ad campaigns. According to WWD's article, "YouTube stars [such as the vloggers at issue] are more popular than mainstream celebs among U.S. teens." Thereby, suggesting that these individuals fall within the realm of duties that the FTC imposes on celebrity endorsers. But who would be liable? Well, it seems the beauty brands and vloggers. According to the FTC, its focus is on prosecuting advertisers, not endorsers. So, vloggers may be in the clear.

What does this mean for celebrities and bloggers alike? They must disclose relationships with advertisers when they receive free products for review, compensation, or other consideration, so consumers can accurately decide how much weight to give the endorser’s opinions about the product. What exactly is an endorsement? According to the FTC, it is “any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness, or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser.” This extends to blog posts and social media posts, as well. While it has been reported that the FTC has no authority to impose civil penalties, in 2011, it charged Nashville, Tennessee-based Legacy Learning Systems with $250,000 in settlement damages, making it the first ever monetary component for a violation of the blogger endorsement rules.

So, bloggers, to avoid complications and potential fines, disclose any material connections. AND make your disclosures “clear and conspicuous.” The FTC suggests using “#Ad”, “Ad:” or “Sponsored” in tweets to be clear that a tweet or link within a tweet includes compensated content, and placing clear disclosures near the beginning of blog posts or videos, in this case, as well.

*This article was initially published in January 2015.