FTC Checks Swing Again on Endorsement Guides, But States that Pinterest Pin Constitutes an Endorsement
When the FTC’s revised endorsement guidelines came out in 2009, there was a big uproar that the FTC would be prosecuting bloggers, leading Consumer Practices Division Director to record a video answering that charge head on. Since then, the FTC has been very restrained in its enforcement of the guidelines.
In 2010, it chose not to pursue enforcement against an Ann Taylor/Loft campaign that the Los Angeles Times called “payola”.
In each case, there was some evidence of partial compliance by some of the participating bloggers and varying degrees of efforts by the retailers to remind bloggers to disclose any consideration received.
In 2013, it again declined enforcement against Nordstrom’s for a campaign giving $50 gift cards to “influencers” who “Tweeted Up” the opening a new Nordstrom Rack in Boise.
Wikipedia explains that a checked swing is
when a batter starts to swing his bat at the ball, but stops the swing in order to allow the ball to pass without hitting it. If the swing was indeed checked, so that there was actually no swing, then if the bat did not touch the ball and if the ball did not go through the strike zone, the pitch counts as a ball.
Last month, the FTC checked their swing again, when Cole Hann launched a Wandering Sole promotion in which consumers could win a $1,000 shopping spree by posting images using the Wandering Sole hash tag on Pinterest. The FTC clearly stated that the
participants’ pins featuring Cole Haan products were endorsements of the Cole Haan products, and the fact that the pins were incentivized by the [contest] would not reasonably be expected by consumers who saw the pins. . . .We do not believe that the . . . hashtag adequately communicated the financial incentive – a material connection – between contestants and Cole Haan.
The FTC justified their checked-swing given that they had not previously addressed whether a pin on Pinterest can constitute an endorsement. Their letter along with prior letters are below.