Tuesday, December 12, 2006

FTC Response on Word of Mouth Marketing Regarding Disclosure

I'm blogging today from the Word of Mouth Marketing Association Summit in Washington, D.C. We just heard a presentation from Mary Engle, Associate Director for Advertising Practices at the Federal Trade Commission. She discussed the FTC's response to a complaint received from Commercial Alert (see background on the complaint and FTC consideration here). She summarized their complaint as follows:

Commercial Alert states that it is deceptive for marketers to pay consumers to engage in buzz without disclosure of the monetary exchange. They sought investigation of "buzz marketing" practices and asked the FTC to issue guidelines and bring cases. (NOTE: Commercial Alert should be calling this "shilling" or "stealth marketing" rather than calling this buzz marketing).

Here's the quick summary, with more details below:

- when payment is made to a consumer, that payment, by law, needs to be disclosed;
- marketers do not need to get parental permission for teens 13-18, but do need permission if the kid is under 13 (consistent with COPPA);
- non-monetary compensation (such as free samples, reward points, swag, etc.) do not need to be disclosed by law, but the FTC referenced that the WOMMA ethics code requires disclosure regardless of payment.
Here are the details:

The FTC declined the request to issue specific guidelines for WOM marketing, arguing that they feel a case-by-case investigation and enforcement is adequate. However, they did issue an official response later stating the the FTC's Endorsement & Testimonial Guides are applicable to WOM marketing. The FTC states that paid WOM advocacy fits the following definition of endorsement:
"An endorsement is any advertising message that consumers believe represents the opinions, beliefs, experience, etc. of a person other than the sponsoring advertiser" (Slide 8)
The Endorsement Guides require disclosure of the relationship between a seller and endorser "that might materially affect the weight or credibility of the endorsement" (Slide 9). They define a material connection as "one that isn't reasonably expected by the audience" (Slide 9). They also provide the following examples of these relationships: 1) seller is paying endorser, 2) endorser is related to seller, and 3) endorser is business associate of seller.

Their reasoning is that consumers wouldn't normally expect that someone has been paid to talk to them about a product. Further they suggest that consumers may give more weight to Person A's views rather than Person B's views if they know that Person A is independent from a seller while Person B is getting paid. Therfore, the reasoning goes, "Under the FTC Endorsement Guides, financial tie between the seller and paid agent should be disclosed."

Ms. Engle's presentation also addressed if the WOM program participant isn't paid, is disclosure still required? The FTC argues that it depends on whether consumers would give more weight to an endorsement if payment was or wasn't involved. It also notes that WOMMA's ethical guidelines call for disclosure even when there isn't payment. (For a research study about the potential business benefits of disclosure and guidelines for companies, please read my "To Tell Or Not To Tell?" report).

The Commercial Alert complaint also expressed concern about children's involvement in WOM marketing programs. The same disclosure applies in these cases. But what about parental consent? If a marketer solicits participation of kids under 13, then marketers need to comply with COPPA (Children's Online Privacy Protection Act), which means parental consent is required. But outside the scope of COPPA, the FTC doesn't enforce any other law that requires parental approval.

Download Mary Engle's Presentation from the FTC
(opens into PDF file)
Commerical Alert's Reaction (Dec 11, Dec 12)
WOMMA's Reaction
Download To Tell Or Not To Tell? Research Report (link to download page)

Disclosure: Advisory Board Member of WOMMA