This post is not an ad

In my previous post about the FTC’s new guidelines for bloggers I wondered whether the new rules would apply to Twitter. According to the FTC, they do:

As for Twitter, the FTC isn’t letting you get a pass with the excuse that 140 characters–Twitter’s famous text limit–is simply too short. “There are ways to abbreviate a disclosure that fit within 140 characters,” Cleland said. “You may have to say a little bit of something else, but if you can’t make the disclosure, you can’t make the ad.”

That’s funny, when I mention liking a product on Twitter, I didn’t know I am “making an ad.” I thought I was expressing an opinion to the people who follow my feed.

Lots of my tweets, I mean ads, are in technical violation of this rule. I go to tastings and dinners all the time. I’m going to one tonight, in fact. If a few hours from now I post something like “This cocktail with Brand X is delicious!” without adding that they gave me the drink for free, I could be fined for not making the disclosure.

Of course I’m not so much of an internet celebrity (alas!) that the big bad FTC is going to spend time reading my tweets. But it’s silly make this activity illegal and it raises the prospect that people will use FTC complaints as a way to get revenge against bloggers and Twitterers they don’t like. Like Jeff Jarvis, I would rather have a messy, unregulated, and free internet than an internet that’s aggressively sanitized by the government busybodies.

Update: Jack Shafer weighs in here. Thanks, Ben!

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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.]

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