FTC trains government focus on … bloggers

posted at 2:20 pm on October 5, 2009 by Ed Morrissey

The Federal Trade Commission has decided to focus its regulatory sights on the scourge of — product reviews by bloggers.  By a unanimous vote, the FTC now mandates that bloggers disclose any payments or freebies received for their reviews, a mandate which does not appear to have an analog with mainstream media organizations:

The Federal Trade Commission will require bloggers to clearly disclose any freebies or payments they get from companies for reviewing their products.

It is the first time since 1980 that the commission has revised its guidelines on endorsements and testimonials, and the first time the rules have covered bloggers.

But the commission stopped short Monday of specifying how bloggers must disclose any conflicts of interest.

The new FTC guidelines actually go farther than just bloggers.  They also make celebrity endorsers disclose more explicitly the compensation they receive for flacking products:

Celebrity endorsers also are addressed in the revised Guides. While the 1980 Guides did not explicitly state that endorsers as well as advertisers could be liable under the FTC Act for statements they make in an endorsement, the revised Guides reflect Commission case law and clearly state that both advertisers and endorsers may be liable for false or unsubstantiated claims made in an endorsement – or for failure to disclose material connections between the advertiser and endorsers. The revised Guides also make it clear that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on talk shows or in social media.

And the guidelines don’t stop there, either.  Also under FTC scrutiny is “word of mouth” marketing, which seems to imply that anyone in any context that receives some sort of material remuneration for talking about a product will come under the FTC’s jurisdiction:

These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers.

Where does the FTC’s jurisdiction end?  If I get a free tube of toothpaste in the mail and say nice things about it on Twitter, Facebook, or in a PTA meeting, do I have to disclose it as a freebie or pay the $11,000 fine the FTC imposes?  What kind of disclosure can one fit into a 140-character Twitter message, anyway?

This is another in a line of paternalistic decisions on consumer product issues from the federal bureaucracy.  It treats blog readers like idiots who are in constant danger of brainwashing by bloggers.  American consumers are much brighter than the FTC assumes, but treating us like adults would not give them leverage to increase their power and their intrusiveness.

Don’t get me wrong.  If a blogger gets paid to write a review, the blogger should disclose it.  If the product comes free from the manufacturer, as a rule, that should also be disclosed.  However, that should also apply to the mainstream media as well as everyone else, but in the rational manner of audience credibility.  Those bloggers who don’t disclose risk losing their credibility and their audience when they get discovered as paid shills, and it wouldn’t take long to figure that out.

Just for the record, I have never been paid to write a review, nor would I agree to such an arrangement.  Publishers will often send review copies of books, many of which I never read or review, which they also do with newspapers and television stations.  The Amazon links on the occasional product reviews do give me a small bit of compensation when people buy the products through my Amazon Associate program, revenue that gets reported to the IRS each year.  That’s hardly a state secret among blog readers.

If the FTC has the time to chase down bloggers who do product reviews, then they must not have much to do.  These new rules insinuate themselves into regulating free speech, and worse, they give no clear guidelines on the scope of the enforcement or the methods of disclosing properly to avoid the FTC’s wrath.  They aim a bazooka at a gnat in terms of public danger to consumers and threaten to squelch the online discussion of product virtues and failings, which can help inform people in their choices.

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