The FTC has guidelines regarding the disclosure of any relationship you as a brewer, winemaker or distiller may have with someone tweeting or blogging reviews of your products, and you need to know about them.
The Federal Trade Commission’s guidelines “Concerning the Use of Endorsements and Testimonials in Advertising” are a pretty short read. Which is interesting given that they can amount to some extremely hefty penalties for any winery or brewery that has bloggers or tweeters talking about their products without disclosing the relationships between the brewers, winemakers, distillers and the social media user that’s posting something positive about their beverages.
The bottom line is that when there’s any form of connection between someone posting an endorsement and the product that they’re endorsing that isn’t “reasonably expected by the audience”, the connection must be disclosed. e.g. a blogger that you’ve given something to, or a tweeter who’s gotten some free liquor to review.
Of the examples listed on the FTC’s website at Section 255.5 the “Disclosure of Material Connections”, the liquor world, especially those of us involved in the craft beer segment should be aware of these two examples, which will apply to any blogger, tweeter or anyone else who’s positively reviewing a product but may have a connection (employees included) to the beer:
Example 7: A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog” where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the time it provides the gaming system that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance.
Example 8: An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.
So if a craft brewery gives me a free beer or t-shirt and I write a positive review of it, I may be on the hook for not disclosing that I’ve gotten some benefit.
Andy Goldstein from our office (one of our firm’s IP law gurus who wrote an article on this topic well before it became a mainstream phenomenon – and who also collaborated on the pro bono work our firm did for the Andrew Bird documentary) sums it up extremely well:
The FTC’s message here is clear: any advertisement or communications messages, including blogs or other online posts, that endorse a product or service must clearly and prominently disclose whether the endorser was hired by or received any payment, free products or other consideration from the provider of the product or service. If these disclosures are not made, the provider of the product or service and/or the PR or advertising agency responsible for the endorsements, and their owners or principals or employees, may be held liable for deceptive and false or misleading advertising.