What happens when you mix technology, goverment and idiots? You get a ruling like the FTC recently finalized. The ruling (which you can view at the FTC’s site here) is a major blow to us bloggers and marketers. Why? Because it walks a very dangerous line bordering on the limits of Net Neutrality, Fair Business, down right stupidity.
Now, I’m not saying we shouldn’t have a ruling such as this. I believe we do, though I believe the way it is currently written there are major implications which are harmful to the industry and serve no purpose except to pencil please some big wigs. Why do I say that?
The ruling, in its current state, leaves plenty open to interpretation while barely hitting at the root of the problem. Let me give you an example:
Advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect.
This seems ok on the surface … just like Communism looked good on paper. The need to advertise truth instead of half-truths and lies is self evident, though isn’t there a law like that already? On TV, when we see a infomercial about a “brand new fat burning formula” it is always followed by testimonials and examples during which (or directly afterwards) state that such results are not typical. I pretty much think that most people will understand that seeing a muscle builder on a ‘fat burning’ pill commercial is only part of the advertisement. They are there to look pretty. Especially when they say things like “results not typical” or “This is a paid model”. For those people who do not understand that, well … tough cookies for you for being an idiot if you do not understand that “results not typical” means that the results are not typical! Not rocket science.
This new ruling aims to squash such advertising on blogs and the like. I do not see anything wrong with using models or your best results to show off your work. Imagine if Picasso, Dali or even Leonardo Davinci instead of showing off only their best works they showed ‘typical results’. Work that they tried but didn’t like, work that just wasn’t right or rejected, work that they did when young and was absolutely horrid?! Imagine that!
Expert on this sort of stuff and marketter like us, Frank Kern had this to say about the subject on his blog Mass Control:
Up until these guidelines came out, you could be really safe by simply putting the standard “results not typical” disclaimer on your site. You’ve seen it 100 times, right?
It goes something like this: “Results not typical. Your results may vary.”
No big deal …up until now.
Here’s the key phrase form the “official” paragraph above:
required to clearly disclose the results that consumers can generally expect.
What this means is that if you have a testimonial where someone gets an amazing result using your product, you’ve got to follow it up by saying something like this:
Results not typical. The average user uses this DVD as a coaster for their Big Gulp and never loses any weight at all.
And frankly, even doing that might be dangerous if you say “the average user uses this DVD as a coaster” because the FTC could theoretically argue that …well, you’re implying that therefore all anyone has to do is NOT use the DVD as a coaster and they’ll lose 950 pounds.
See? Easy to screw that one up.
Here’s more from my man Gary [Gary is Frank Kern's lawyer]: “The FTC also said that it believes that it is “likely” that testimonials that present the specific experiences of a product user (e.g., the number of pounds or inches lost) will be viewed as claiming that those experiences are typical of what consumers will generally experience.”
Mmm hmm. Trouble with a capitol “T” right there, buddy.
Here’s the sentence that get’s you: viewed as claiming that those experiences are typical of what consumers will generally experience
In my opinion, this means that if you say Pasty lost 950 pounds, the FTC will view this as you saying the TYPICAL USER will lose 950 pounds.
And if you don’t have documented proof out the wazoo showing that the typical user loses 950 pounds, you’re hosed.
Frank does a very good job of describing (part) of the problem on this blog article. Worth a read. Sylvie Fortin said this about the subject:
how in the world can our buyers know what a “typical
result” would be, assuming that the endorsement or testimonial is real
and valid and based on an actual person. In other words, let’s say we
have a success story that one of our fans wants to share with the world.
They bought our product and had an amazing experience using it. They
blog about it and they truly believe that their personal experience is
representative of what any other student would experience. But they have
no way of knowing what other people experience under similar
circumstances, so how can they be expected to know what a “typical
result” would be for someone else?
And are we, as vendors, responsible for tracking down all endorsements
on our affiliate’s sites and rewriting them to be more compliant with
the FTC rules?
A very good point. How can we know what do to and what not to do? Of course, we will have to err on the side of caution, though with just generic descriptions who knows what is right and wrong!
Hopefully this will develope well in the future with more concrete definitions to help us along