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.