We are journalists, not marketers

The FTC has issued new guidelines cautioning bloggers to disclose ties to products they endorse or risk an $11,000 fine:

The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.

Yes, it’s true: Sometimes marketers send me stuff hoping that I will write about it. Shocking, right?

Speaking only of the booze blogging world, I don’t see how this rule is either necessary or workable. It’s not necessary because we all know that our credibility will take a hit if we endorse bad products. I’m more likely to mention a product that I’ve received for free than one that I have to pay for simply because I don’t have an infinite budget for liquor, but I’m not going to sell out by giving a review to every crappy product that hits my door; I have the barely touched bottles of flavored spirits to prove it. (Actually I don’t, because I give those away for friends to use at house parties when people are too drunk to care.)

If there’s a demand for disclosure policies bloggers will provide them. Doug’s doing this now at his Pegu Blog by appending every post using a free product with a note saying that “the Liquor Fairy was here.” It’s a good idea and seems to work for him. In my case though I’d have a hard time deciding when to include a disclaimer, in part because I’m courted by marketers not just as a blogger but as a bartender as well.

A clear case of when I could (and generally do) include a disclaimer is when I get a package in the mail with a sample bottle and a note saying the sender hopes I will write about the product. Some less clear and entirely realistic cases include:

A liquor company holds a contest for bartenders offering real or potential rewards to those who participate by creating a drink with their product. I like the drink I come up with and feature it here; I mention that it was for a contest but don’t specify the rewards of participation.

A liquor company gives me a bottle or taste of their product unaware that I am a blogger. I like the product and write about it.

A liquor company takes me to dinner and offers samples of their products. A few months later the same company comes out with a new product that I independently purchase and enjoy. I write about it here.

A liquor company holds an open tasting event geared toward bartenders, bloggers, and enthusiasts. I attend and blog about the product.

A liquor company sends me a bottle for review. I don’t review it here, but I mention liking it on Twitter.

You get the idea: Spend enough time in this business and a lot of free stuff is going to come your way. And given the massive consolidation in the liquor industry there’s not going to be any brand owned by one of the big companies that I won’t have some plausible connection to. Trying to disclose all of this would get rapidly out of hand; not disclosing it leaves me liable to thousands of dollars in fines under an untested rule. (It’s unlikely the FTC would come after me, but all it takes is one vindictive person to file a complaint.)

I’ve been considering adding an explicit review policy to this site and may do so soon, but I don’t know how I could fully comply with the FTC guidelines even if I wanted to. The same ends are accomplished by bloggers’ need to maintain credibility without the potentially chilling effect this rule would have if it’s enforced too liberally.

What strikes me as the biggest flaw in these guidelines is that they treat bloggers as equivalent to celebrity endorsers or “word-of-mouth marketers” rather than as journalists. With possible exception for sites designed specifically as disguised ads, it seems better to leave disclosure to journalistic discretion rather than codifying it into law.

[Via @BrookeOB1.]

Comments

  1. The rumors about this particular regulation have been floating around for a while now. It’s much broader and more vague than I had hoped. I knew it was something I was going to have to contend with because I do reviews – and let’s be honest, I can’t spend enough money to review EVERYTHING. Nor can I even ensure that I have access to everything that I want to review or that my readers want to see me review. The “mainstream media” aren’t constrained by these rules, and they couldn’t do their job without free samples. If the idea is that I’m an independent journalistic endeavor, then how can I do MY job as a reviewer of spirits for my readers if I can’t manage samples?

    I know a lot of bloggers right now are talking about refusing samples from now on, and others are talking about just closing shop altogether – since that seems to be the FTC’s preference.

    For the time-being, I can say that the CSOWG is looking in to what, exactly, spirits and cocktail bloggers can do to comply. I’m very hopeful that a blanket statement contained on my blog stating that it is my policy to accept and review samples and that readers should assume that any and all reviews are of products that I have been provided with by the manufacturer or an agent thereof for the purposes of that review should be sufficient.

    I guess we’ll see.

  2. For a long time, I’ve had this disclosure policy posted to deal with the fact that I get lots of free stuff (cigars, spirits, other random swag) because I run an apparently somewhat influential website. It’s a blanket disclaimer that states just that sometimes we write about stuff we didn’t pay for and we would never jeopardize reputation by letting that influence our opinion. I don’t know or care it that satisfies the FTC.

    More fundamentally this regulation raises the question of who is journalist in today’s complex new media world. I’ve received media credential to cover newsworthy events and I’m listed on google news. I only post one article each day. Does the fact that I use wordpress to publish my site mean I’m not a journalist, but a blogger? According to WordPress, CNN, Fox News, the NY Times, the Financial Times, Reuters and the Wall Street Journal all use WordPress too. Does that mean they are bloggers? Journalists? Both?

  3. Glenn says:

    The nanny-state continues it’s encroachment. I find the entire premise of this intervention insulting. It’s as though they think that the public at large doesn’t realize I may have all kinds of interests and relationships that are profitable for me, and worse, that I’m some kind of predator looking to cash in on their ignorance and innocence. Yikes, the more these jerk-offs try to take care of us, the weaker we become. I’m really at the end of my tether with the relentless press of the do-gooder set. It truly feels like 1984 to me sometimes now (not just under BHO either). The internet is the only place a real entrepreneur can let it rip these days. I wonder how much longer that will last?

  4. Doug Winship says:

    To be fair, I’ll actually defend the government here. (Stand back as the Earth trembles)
    I do not think the FTC has any intent to shut down blogging (some news orgs might like it), or to even stop the practice of samples, etc. They are simply clueless about the whole thing, and addressing this minor issue in typical government fashion.
    By all means, deal with the issuance of a $20 sample to a blog with 1-9 hundred readers by leveling $11,000 fines! They don’t mean to destroy things, but when something as big as the Federal government touches anything small by comparison, which is everything, things bent or broken swiftly.
    Heck, we all violate three federal laws a day, why not one more?

  5. Robert Burr says:

    The issue is advertising. If XYZ Spirits uses a quote from RumDood in their ad, they must be honest about his true endorsement. They must honestly disclosed if his endorsement is a result of paying him money (or booze). How does this get turned around to bloggers being fined large amounts of money for writing reviews of products they have receive as professional samples for the purpose of reviewing (or not)? That’s not advertising. That’s not affected by this ruling.

    It’s about honesty and truth in advertising. If you paid the Beverage Testing Institute $450 to give your product a review and rating, disclose it when you put it on your Advertisement.

    These guidelines are administrative parameters to help advertisers comply with the Federal Trade Commission Act; they are not binding law themselves. The effort is to keep advertisers honest in their claims and avoid deceptive use of endorsements that were not intended to be endorsements used for advertising — which we can all agree would be a deceptive use of an endorsement.

    Only advertisers can be fined — NOT BLOGGERS.

  6. Jacob Grier says:

    @Robert Burr: Robert, I’ll check into this further in the morning, but the reporting I’ve seen indicates that the door is open to leveling penalties against bloggers directly. From the NYT:

    For bloggers, the FTC stopped short of specifying how they must disclose conflicts of interest. Rich Cleland, assistant director of the FTC’s advertising practices division, said the disclosure must be ”clear and conspicuous,” no matter what form it will take. [...]

    The FTC’s proposal made many bloggers anxious. They said the scrutiny would make them nervous about posting even innocent comments.

    To placate such fears, Cleland said the FTC will more likely go after an advertiser instead of a blogger for violations. The exception would be a blogger who runs a ”substantial” operation that violates FTC rules and already received a warning, he said.

    So yes, the primary target is advertisers, but the FTC is leaving the option of going after bloggers open.

  7. nicole says:

    @Robert Burr:
    How does this get turned around to bloggers being fined large amounts of money for writing reviews of products they have receive as professional samples for the purpose of reviewing (or not)? That’s not advertising. That’s not affected by this ruling.

    In fact, the new guidelines definitely consider such reviews advertising, one of the most offensive aspects of them. See, e.g., pages 38-42 of the new guide (PDF). Basically, if you are compensated (no matter how little) and say something positive, that is a sponsored endorsement and therefore requires disclosure of the material relationship.

Trackbacks

  1. [...] Thanks to Max Borders of Free to Choose for sending me a copy. If I lived in the States and neglected to mention that, by the way, I would be risking an $11,000 fine. [...]

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