"Haulers" Who Help Companies Must Disclose

A free, trusted personal shopping assistant showing up right at my home to tell me what is in style and where to get good deals sounds too good to be true. However, the new growing trend of Vloggers (video bloggers) creating "haul videos" where shoppers show off recently purchased items called "haul" does just that. According to Good Morning America, more than 110,000 videos are on YouTube, averaging around 10 minutes each. There is even a haul video website that compiles haul videos already on YouTube. Teenage girls are leading the phenomena, making enormously popular haul videos from their bedrooms after a day at the mall, with two of the leading vloggers, Elle and Blair Fowlers, generating a following such that their YouTube videos have been viewed 75 million times. Certain retailers have been picking up on this way to reach the tween and teen market by sending free merchandise to the popular vloggers. Although Elle and Blair claim that they "would never review something that they would not have spent their own money on," under the FTC's Guidance on endorsements and testimonials they may be considered endorsers of the product and may need to disclose any freebie they receive. We have previously blogged about the FTC's latest revisions to guidance to advertisers regarding endorsements and testimonials. Bloggers who participate in marketing programs where they receive free products to review or who receive incentives for talking to their friends about a product can be considered endorsers and therefore put a retailer under scrutiny and possible enforcement action by the FTC. In the same way, vloggers and the companies for which they advertise may be in murky water when the line isn't clear if a vlogger is discussing products of her own volition or if she is influenced by the company itself. One vlogger, reported by the New York Times, stated that she believed "undisclosed payments between haulers and suppliers were probably routine," judging from her own experience with companies approaching her to endorse. In the area of product endorsements and haul videos, the FTC may be particularly concerned about the potential to mislead a vulnerable audience of preteens who tune into a vlogger to hear a friend giving advice about her favorite stores and items even though the vlogger is actually paid. The FTC staff has stated its position that bloggers must be explicitly told to disclose to their readers when they received free merchandise or other compensation, and that posting a sign at a conference telling bloggers to disclose isn't enough. It is the companies or retailers, and not the endorsers, that the FTC will investigate and, therefore, retailers must have responsible steps in place to require that bloggers and vloggers disclose any relationship to the company and require those disclosures to be clear and conspicuous. When the intended audience is young consumers, the disclosure must be prominent and understandable to them. Blair Fowler appears to do it right in one of her haul videos where she advertises a shoe website's giveaway competition, and begins by explaining that she received a free pair of shoes from the company in the mail. In the world of tweens, where she who has the most trendiest stuff wins, retailers face the dual challenge of ensuring compliance with FTC guidelines on disclosure and with tween guidelines on what's cool. – Amy Mudge and Deborah Birnbaum

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