The FTC is NOT gunning for mom bloggers

by Susan Getgood on May 19, 2009 · 25 comments

in Blogger relations,Blogging,Ethics

Articles in the mainstream press, like this one today in BusinessWeek, give the impression that somehow the Federal Trade Commission is targeting mom bloggers for “enforcement.” Poppycock.

The FTC is doing a review of its guidelines on endorsements and testimonials. That’s part of its job — to protect the consumer from deceptive advertising practices. In 2007, it published notice of its intent to review these guidelines and solicited comments. Last year, it published this document, soliciting additional comments, which were accepted until earlier this year.

In the process, new media got added to the mix because word of mouth marketing, whether done by guerrilla marketing agencies or bloggers, is a new form of endorsement.

The question then becomes is it a commercial endorsement or not. If commercial — if it qualifies as advertising — then the guidelines may apply.

Why is this an issue for mom bloggers?

Not because the FTC is targeting them. It is not. However, consumer products companies are, big time. Bloggers are being asked to endorse products in a variety of ways, from sponsored posts to free product to big events and trips. So, what is the real impact of the possible changes to the guidelines?

A long time ago, when I wasn’t much older than my son is now, I thought I wanted to be a lawyer. Which may explain why I still get off on reading 86 page policy documents from the FTC. The good news is, I do, so you don’t have to. Today, I reviewed the FTC call for comments on the guidelines, the most recent public document we have.  Here’s the scoop.

The bulk of the 86 page document focuses on deceptive use of testimonials in advertising, largely for weight loss, baldness and other pharmaceutical (and quasi pharmaceutical) products.  Disclosure of the relationship among the parties and substantiation of claims are the main themes.

There are only three examples related to blogs. The citations are the direct quotes from the document; headlines and emphasis mine.

Number one: Liability for false statements in a sponsored post.

“Example 5: A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser’s products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion’s ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition. The advertiser is subject to liability for false or unsubstantiated statements made through the blogger’s endorsement. The blogger also is subject to liability for representations made in the course of her endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously that she is being paid for her services. [See § 255.5.]

In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.”

Number two: Disclosure of receipt of free product

“Example 7: A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog” where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. The readers of his blog are unlikely to expect that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact would likely materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and  conspicuously disclose that he received the gaming system free of charge.

Number three: Anti-astroturfing. Requires disclosure of material interest when making an endorsement.

“Example 8: An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to  members and readers of the message board.”

So what’s the big deal? Doesn’t this all make sense?

It will come as no surprise to readers of this blog, but apparently to some: businesses do not always act in the best interests of consumers. Sometimes they even lie. That’s why we’re in a recession.

The FTC protects us from deceptive practices in advertising, and extending the policies to social media that qualifies as commercial speech makes sense. If you are a blogger, that may include some of your writing. But please don’t over-react. The FTC is not interested in honest reviews of products by bloggers.

It is interested in protecting the consumer. Us.

What should bloggers do?

Well the document I read today merely outlines the direction the FTC was taking. The final guidelines could be slightly or even very different. Nevertheless, I’ll stand by my original post on this topic (Bloggers liable for statements about products? Maybe says FTC ) and say that the key issues will be compensation and disclosure. To what extent is the blogger a proxy for the advertiser?

In that context, here’s my advice. Keep in mind:  I am not a lawyer and I do not play one on the Internet.

1. Whether you write paid posts, go on paid trips or take free products for review, or not, review your blog disclosure policies. Are you clear about your interests and affiliations?

I have three blogs, and each has a slightly different policy. Marketing Roadmaps accepts no advertising whatsoever. Snapshot Chronicles, my personal blog, runs BlogHer ads and is an Amazon affiliate. Snapshot Chronicles Roadtrip, my new family travel blog, accepts review product and advertising with the policies clearly spelled out.

For reference, here’s the general policy for the Snapshot Chronicles.com domain and for the Getgood.com domain that hosts the Marketing Roadmaps blog. Every blog I build for a client has a similar policy. Every one.

If you feel better having a lawyer review your policy, go for it. Especially if you are making money from your blogging or you are in partnership with other bloggers. It’s your business. Protect it.

2. If you accept compensation for a blog post, disclose the payment. If the post was written as part of a blog network, even if you are not compensated directly but the network is, disclose. When in doubt, disclose.

3. If you accept free product, whether or not there is an explicit agreement for a review, if you do the review, disclose. Also, as Erin Queen of Spain pointed out on Twitter today, don’t forget your tax liability for free products. Personally I think it far more likely that the IRS will come knocking than the FTC. Cover yourself.

4. Be careful about claims you make about the products. In the skincare lotion example, there’s a big difference between saying “This cream cures eczema” (Wrong) and “This cream really helped my eczema.” (Specific, probably acceptable). In advertising, commercial speech, general claims must be substantiated.

5. It would be nice, wouldn’t it, if the FTC would say something like free product over $x dollars is subject to the guidelines, but under, it is not. Abandon that hope. It won’t happen. Absolute numbers are a policy mistake, and one that I do not see the FTC making in this case.

Use your common sense. If you take a book or DVD or baby sling to review, something you might purchase anyway, the FTC probably isn’t going to spend any time worrying about deception in your review. Sorry.

A new car? A free trip? A suite of brand-new appliances? Uh. Yes. These are levels of compensation that may get some scrutiny. Should that prevent you from participating in a blogger program? Absolutely not. Assuming everything about the program is kosher, that would be stupid. The FTC is focused on deceptive practices, not honest reviews.

Stay on the side of the angels. You’ll be fine.

This post has focused on the blogger side of the blogger relations equation. In the next few days, I’ll share some thoughts on how the proposed changes might impact what companies and agencies do.

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{ 12 comments }

1 Busy Mom May 19, 2009 at 11:06 pm

Thank you for this, it’s great.

Busy Mom´s last blog post..My dad is in the House

2 jeneane May 19, 2009 at 11:08 pm

OH SURE, as soon as Scoble and Arrington and company finish 8 years of tech guys getting $$ high end free stuff $$, mom blogger relative new comers get got by the govt for raking in baby slings? GAH!

Seriously though, this is a GREAT overview of what’s going on, and what should concern us (and not concern us), which, until now, I really didn’t understand. THANKS SUSAN!

jeneane´s last blog post..if i had a dollar for every post I’ve written here…

3 Stephanie May 19, 2009 at 11:32 pm

Yes, thank you. This has helped me understand the events of today SO MUCH MORE.

Steph

4 Julie @ The Mom Slant May 20, 2009 at 1:04 am

All in line with common sense, but given that our government doesn’t always act in accordance with common sense (hey, I used to be part of it – I know), it’s good to get some reassurance. Thanks Susan.

Julie @ The Mom Slant´s last blog post..Children on the gender conformity continuum

5 Mom101 May 20, 2009 at 7:12 am

Finally, some common sense around here. Fantastic assessment Susan.

One of the other passages I think is worth mentioning is the idea of revealing a product came for free unless it is generally expected or understood. Which is why celebs are off the hook for their Oscar gowns. (Although I wonder if they’re paying taxes on them.)

Mom101´s last blog post..Well there’s one way to scare the crap out of me.

6 Deb on the Rocks May 20, 2009 at 8:21 am

Mom101 makes an excellent point about Oscar gowns. If you are not writing a review or recommendation, but are using a product or taking a trip that is sponsored, I don’t think there is a requirement, ethical or legally, to disclose it, especially if your blog define itself as a news or consumer review site. Consumers understand product placement or sponsored exchanges in television, movies, award shows and in blogs. People are going way overboard on this.

7 Susan Getgood May 20, 2009 at 8:30 am

Deb — I’d be very leery of making that assumption vis a vis blogs. The celebrity examples in the FTC guidelines are very specific to well-known celebrities and instances where the public reasonably expects that the celebrity got it for free or is being compensated (like in an ad). The FTC also makes a distinction between a natural endorsement, such as an interview, where we don’t necessarily expect that the celebrity is compensated. An example in the guidelines explicitly states that if a celebrity is being compensated or has a material interest in a product and explicitly endorses it in a natural setting like an interview, the relationship must be disclosed. This is different than simply wearing an article of clothing (like a gown or sports apparel) without making an explicit, generally verbal endorsement.

Bloggers are private citizens. Most of us aren’t famous, and we generally pay for our own vacations, groceries, clothes and appliances. If you take free product, and don’t write about it, sure, you don’t have to disclose it, but if you never write anything, don’t expect to be getting too much free product either. If however, you take the free stuff, and write about it on your blog *in any way* I think you are far better off to disclose than not.

But as I said before, not a lawyer. YMMV.

8 Boston Mamas May 20, 2009 at 9:23 am

Honestly Susan, I wish there were more people in the world like you: straightforward, smart, (willing to distill legal documents for those of us lacking that talent…), and a proponent of following your instincts.

I myself do not believe in pay for play and all editorial at Boston Mamas is truly editorial (no sponsored posts). I also have no problem telling a vendor that something will not be featured if it isn’t up to snuff in person (and I’m stringent even about what comes in the door because I don’t want to waste my or the vendor’s time). But however a blogger chooses to run their blog, transparency is key.

Thanks for this excellent post. -Christine

Boston Mamas´s last blog post..Classy Coverup

9 Kimberly/Mom in the City May 20, 2009 at 11:34 am

This is a very helpful post. Personally, I wouldn’t mind some general guidelines. As a parenting review blogger, I have questions (like with these company-hosted trips, are we supposed to pay taxes on them? If so, how do we determine how much – since we don’t get forms from the companies for them?). I think that I had better speak with an accountant. (I’m honest, so I’m more concerned with the IRS than the FTC!)

Kimberly/Mom in the City´s last blog post..The Baby Business Card (Mother’s Day Giveaway)

10 Laura Tomasetti May 21, 2009 at 11:55 am

Great post Susan – thanks for distilling it down for us! Marketers (and us PR people) have a big responsibility here. Authenticity is key, and a big part of that is understanding a blogger’s true interests – if they’re into organics, for example. Be part of their passion (and offer valuable content), don’t ask for an endorsement; honest opinions are much more valuable to us all.

Looking forward to a deeper discusion at BlogHer!

Laura Tomasetti´s last blog post..Brands Blossom in Garden of Social Media – SMC Boston

11 Fairly Odd Mother May 21, 2009 at 9:00 pm

Great post, Susan. Thank you for spelling this out in clear English!

Fairly Odd Mother´s last blog post..Pomp and Circumstance

12 Louise October 6, 2009 at 11:31 pm

It’s the misunderstanding of the guidelines that has got people upset. Some people are upset to because they feel that moms are being picked on. I’m just upset because I don’t want them to come after me. I hope that I disclose enough information on my blog. Oh and I’m going to have to get an accountant for taxes ;-)
.-= Louise´s last blog ..Wordless Wednesday – life of a musician =-.

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