Marketing Roadmaps

Bloggers liable for statements about products? Maybe, says FTC.

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According to several news reports, the Federal Trade Commission is currently reviewing its guidelines on endorsements and testimonials.

The expected revisions would hold companies responsible for the statements made by bloggers who received products or samples, and also make the bloggers themselves liable for their statements about the products.

Whoa Nelly! What happened to opinion? Freedom of speech?

As Linsey Krolik writes on Silicon Valley Moms Blog, will this have a chilling effect on bloggers’ ability to give honest reviews? Will it check the growing influence of bloggers on consumer opinion?

I am not a lawyer, but I have testified at the FTC and before a House sub-committee in a past life, so I have some inkling of how this all works 🙂

Here’s my take.

First and foremost, the expected revisions are just that — expected. Nevertheless, bloggers should still protect themselves NOW. Have  a good disclaimer, especially if you review products. Linsey covers that nicely in her post. You should also be very clear about contests and giveaways. David Wescott (It’s Not a Lecture) and I (Marketing Roadmaps) did a pair of posts about that a couple years ago.

Second, we need to stay on top of the discussion of the new guidelines. Bloggers are consumers, albeit with voices, and we must make sure that our opinions are heard. We are WHO the FTC is supposed to protect, and we should remind them of that fact.

Two key issues in FTC regulation of Word-Of-Mouth

I think there will be two key issues:

  • The extent to which the blogger is acting as an agent for the company. Is there compensation, especially beyond the value of the product reviewed? Is there direction on what or when to write?
  • Whether the content is identified as opinion or stated as fact.

The sponsored post companies (like Izea), blog networks that offer sponsored posts, and the client companies are potentially the most affected by the FTC moves. Possible changes to their business model give them sufficient incentive to weigh in on the arguments. I would expect them to move vigorously to limit both the company’s and the blogger’s liability. BUT, bloggers should be aware that in a commercial transaction, the company is first and foremost going to protect itself. Not you. Act accordingly.

Break it down

The most defensible position, clearly, is when you offer an opinion about a product that you purchased. That is the opinion of a customer, and not subject to advertising guidelines. It starts to blur when we factor in blogger outreach. Companies provide bloggers with product information, including products for review, which they generally don’t expect back. In this case, I expect the FTC will look at how much direction the company gives the blogger and the total value received by the blogger.

Our job is to remind the FTC, and the companies, that firms have been providing product and product samples to customers for years. As long as the blogger is free to share his or her opinion, no restrictions, it is just that,  consumer opinion. And last I looked, opinion was free speech.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (First Amendment to the Constitution)

Sponsored posts ?

Sponsored posts, on the other hand, are going to look an awful lot like advertising to the FTC. Its  job is to protect the consumer from potential abuses. I think they will consider:

  • Is the blogger being directly compensated?
  • If not direct, is there an indirect element as often seen with blog networks where the blogger gets the product, but the network gets the fee?
  • How much direction is given to the blogger about when and what to post?
  • Is the blogger stating an opinion or presenting a fact?

I’m going to dig some more into this issue. Any readers who have additional information on the FTC plans, please leave them in the comments or email me at sgetgood@getgood.com.

This is not the end of the world for blogger relations, social media outreach or viral marketing. It is however an important issue, and we shouldn’t ignore it, thinking someone else will handle it.

They will, and you might not like the outcome.

Reader Interactions

Comments

  1. Really great points – this whole thing is fascinating because bloggers (or some) are the writers, the publishers, the consumers and even the “names.”

    You should publish this on blogher – it’s such great food for thought

    Mom101´s last blog post..13 again

  5. Great information, Susan. My disclaimer is simple and I make it pretty clear on my review blog:

    This Full House Reviews is where I share opinions on stuff; especially, the ones we like! We are always looking to post reviews on products that help make our lives a little easier and perhaps be of interest to families, like us.

    And, a heads up to manufacturers:

    The opportunity to work closely with companies, and try new products and services, is a privilege – as is the manufacturer’s responsibility to market their items in a fair manner – and we really do appreciate your interest in getting our family’s feedback.

    Just my opinion, as always 🙂

    Liz@thisfullhouse´s last blog post..Beware, Doofus Dog on Duty!!!

  6. Susan, Thanks for sharing this on Facebook. This new ruling really does walk the fine line between freedom of speech and trying to regulate a few indiscriminate bloggers from unjustifiably damaging a business’s reputation. When bloggers are not free to write honest reviews, businesses will lose valuable feedback they can use to improve their products and make them more worthwhile to customers. I will be watching for other posts from you, as this develops.

  7. Hi, Susan. You made some excellent points here. I can understand why the FTC wants to keep track of blogs, but limiting content seems contrary to the entire blogging concept. Thanks for shedding some light on this and spreading the word. I think a lot of people are unaware that these regulations are in the works.

    CShaner´s last blog post..Where’s the beef?

  8. Susan – excellent posts and super points. Thank you for sharing your thoughts & experience. I’ll be following this closely like many other bloggers during the coming weeks and months. Sharing information with each other and spreading the word about this pending FTC revisions along emphasizing how important it is to be transparent and have a disclaimer is so important. Thanks! Keep up the good work!

    Classy Mommy´s last blog post..Coming Soon: Meridian Swing Set Giveaway Valued at $599

  10. Hi Susan,

    This is a very informative article. Thank you for sharing. I would like to know if there is a standard disclaimer for bloggers like us that we could use? That would help us a lot in stating what is needed for us to protect ourselves.

    Please let us know. Thanks you again.

  11. Very nice post, Susan. I’ve seen so many job postings trying to recruit bloggers to write about products and services. Wonder if the current situation in the job market will make it worse, since blogging can be a second or only source or resource. How it will impact the bloggers community? Still have to see it.

    Thanks for sharing your amazing points.

    Georgete

    Georgete Pereira´s last blog post..The Nail Game