What I Don’t Get about the FTC’s New Blogger Guidelines

by on October 7, 2009 · 15 comments

Like James Gattuso, I have a lot of questions about the Federal Trade Commission’s new “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” especially as they apply to bloggers. (And over at Silicon Angle, Mark ‘Rizzn’ Hopkins has been doing a great job keeping tabs on the many questions and hypothetical situations that others have been posing about the new rules). But the one thing I just can’t wrap my head around is how the FTC plans to enforce these rules against those speakers or media outlets who have print publications which are fully protected by the First Amendment.  So, I was pleased to see my favorite press critic Jack Shafer of Salon, ask the same question in his latest column on “The FTC’s Mad Power Grab”:

Because of a pesky thing called the First Amendment, the guidelines don’t apply to news organizations, which receive thousands of free books, CDs, and DVDs each day from media companies hoping for reviews. But if the guidelines don’t apply to established media like the New York Review of Books, which also happens to publish reviews on the Web, why should they apply to Joe Blow’s blog? Regulating bloggers via the FTC while exempting establishment reporters looks like a back-door means of licensing journalists and policing speech.

Exactly.  Is the FTC just going to ignore such speakers or media organizations but enforce against everyone else?  Isn’t that just a bit silly and radically unfair?  Moreover, might such a policy end up incentivizing some folks to create token print publications to get around such the regulations?  I doubt it, but you never know.

Regardless, as Shafer notes, the rules are so hopelessly open-ended and arbitrary that they are bound to pose problems for whomever they are enforced against:

The guidelines have to be read to be believed. They are written so broadly that if you blog about a good and service in such a way that the FTC construes as an endorsement, the commission has a predicate to investigate. The only way stay on the FTC’s good side is with a “clearly and conspicuously” posted disclosure of the “sponsors” who provided you with the good or service (or money) to blog about the good or service. As I read the guidelines, the FTC could investigate you if you did disclose but it was not satisfied with the disclosure.

I really do wonder if the FTC realized what they’ve gotten themselves into here.  The enforcement nightmare associated with all this cannot be underestimated.

  • http://rizzn.com Mark 'Rizzn' Hopkins

    Creating a token print version was one idea I jokingly suggested in one of the podcasts I've done on this topic.

    Simply print out all your blog posts and mail yourself a copy, perhaps sell a few for a penny to friends.

    It's a print version. There's circulation. Technically would fit the description of a print publication, yes?

    It's silly, but it highlights the ambiguity and loopholes you can drive trucks through on this set of guidelines.

  • mwendy

    Shouldn't the reputation of the blogger be enough to “police” this? If he / she puts smack out into the blogosphere, aren't there enough voices to smack that smack down?

    “Congress shall make no law…abridging the freedom of speech…” How far we've come. Policymakers append a compelling or substantial state interest, and then “narrowly tailor” a speech rule, and the 1st Amendment clear's limitation gets read out of the Constitution. I know, this games has been going for some time.

    Wonder where our buddies at the “Free Press” are on this?

  • MikeRT

    I'd bet good money that most of the violations that get reported are reported by smug, self-assured trolls who think they're doing a public service by reporting someone with whom they disagree.

  • mwendy

    I'm not familiar with the process by which one files such a claim. I guess it would have to conform to the APA – sort of like a petition to the FTC. Or, the FTC does it on its own. Does anyone know – or is it, they know it when they see it?

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  • chez

    I agree, if the FTC is going to police Janet the stay-at-home amateur blogger because she received a free lip gloss and try to hold her to the standards of a professional journalism organization – when this is just a person with a blog and not a publishing company – then she too should be protected under the “First Amendment” excluding her from having to disclosure that she received a $5.99 lip gloss for free.

    As the FTC excludes a publication such as Lucky Magazine or Glamour who have beauty section that feature and recommend products with no written disclosure that they received these items gratis. Most consumers are very educated and they are going to search and read many reviews on a particular product before they purchase, not just Janet's. And if Janet is smart and appreciates her readership she will be truthful and honest with her blog followers or risk losing her audience down the road.

    The majority of blog readers are not stupid and if they see too many “glowing” reviews and a lot of advertising on your website they will figure out that you are being compensated. The 3 or 4 you find with good reviews, you are bound to find some that will tell you otherwise. There is balance out here in the cyberspace, it does work itself out without the need for 81 pages of burdensome regulations from the FTC and you better believe somebody is pulling that regulation apart as we speak and working on the loop-holes!

  • chez

    I agree, if the FTC is going to police Janet the stay-at-home amateur blogger because she received a free lip gloss and try to hold her to the standards of a professional journalism organization – when this is just a person with a blog and not a publishing company – then she too should be protected under the “First Amendment” excluding her from having to disclosure that she received a $5.99 lip gloss for free.

    As the FTC excludes a publication such as Lucky Magazine or Glamour who have beauty section that feature and recommend products with no written disclosure that they received these items gratis. Most consumers are very educated and they are going to search and read many reviews on a particular product before they purchase, not just Janet's. And if Janet is smart and appreciates her readership she will be truthful and honest with her blog followers or risk losing her audience down the road.

    The majority of blog readers are not stupid and if they see too many “glowing” reviews and a lot of advertising on your website they will figure out that you are being compensated. The 3 or 4 you find with good reviews, you are bound to find some that will tell you otherwise. There is balance out here in the cyberspace, it does work itself out without the need for 81 pages of burdensome regulations from the FTC and you better believe somebody is pulling that regulation apart as we speak and working on the loop-holes!

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