It’s my youngest daughter’s last high school spring break and we’re celebrating with a family trip to Sicily. (Molto bene!) I used a popular travel site to arrange some parts of our trip.
As is always the case these days, I was prompted to leave reviews for the services I booked through the site. The question, dear reader, is whether I should disclose in my review that I have a material connection with the site itself: it’s a client. Is there a bias that should be disclosed because it would be important to the next prospective traveler to know about in evaluating my reviews?
Let’s break this down, per the FTC Endorsement Guides. First, is there an "endorsement"? Yes, I am leaving positive reviews. But who am I endorsing? Well, certainly the service providers themselves. And the travel site? Not explicitly, though arguably implicitly.
Next, do I have a "material connection" here? I definitely don’t with the service providers. I do with the travel site. However, I’m reviewing the service providers, not the site. Plus, I’ve been using the site — and leaving reviews of providers I’ve booked through the site — since long before the site became a client. The client didn’t know I used the site for my trip and certainly didn’t ask me to post about it. Moreover, the providers I booked through the site are legally separate from the site.
So, my conclusion? I have no obligation to disclose my material connection to the site when posting my reviews of the providers, notwithstanding the fact that my doing so arguably benefits the site itself.
And if I’m wrong? Doesn’t the FTC have far bigger fish to fry? (And those fish in Sicily? Delicious!) Of course it does. But the FTC — and NAD — are clearly still interested in influencer disclosures so it’s important to think through these issues. And, when in doubt, it’s always best to disclose. Here, though, I made the judgment that in this specific scenario, the relationship between the endorsement and my "material connection" was just too attenuated to trigger a disclosure obligation. I’d like to think I’m influential (at least in my capacity as an advertising lawyer) but, in the travel realm, I’m just not an influencer.
#LawyersArePeopleToo #CommonSensePrevails #AdLawNerd