Tuesday, October 06, 2009

What Does the FTC's New Ruling Mean for Bloggers?

Did you hear about the FTC sticking its nose into the blogosphere? Well for those who may not have access to the 81-page document or who may not have access to an attorney to decipher it for you I'm coming to your aid.

I put my in-house counsel on the case and here's what he says, take it as one legal opinion (though not advice) and use it as you will.

***

Michelle and I were watching TV the other night and saw a commercial for one of the hundreds of CSI wanna-be shows. This one was about a blogger who had been murdered. Michelle looked at me and said, “We’ve made it to the big time when crime shows are about killing bloggers.”

Big time is right. Bloggers are now regulated by the Federal Trade Commission which just came out with a new law (effective on December 1, 2009 – Merry Christmas!) that cover those free products bloggers receive with no strings attached. Here’s the what it means for you:
  • If you buy a product on your own and you write about it, then you don’t have any worries.

  • If you get a free product and write about it, but the product doesn’t cost much, you rarely receive free products, and don’t have a wide readership, then you probably don’t have anything to worry about.

  • If you get a free product and write about and regularly receive such products and have a wide readership and the item is used by your targeted audience, then you should disclose who sent you the product and that you got it for free.

  • If BMW send you a free car with the hopes that you’ll write about it on your blog, then I would say that you must disclose the goodness of BMW.

  • If someone pays you to write about the product, then absolutely you should disclose the payment.
What sort of disclosure is required? Something like this:
  • "The ABC company sent me this new magic thing-a-ma-bob the other day for free. I’ve been using it and absolutely love it."

  • "ABC COMPANY GAVE THIS TO ME." (LAWYERS LOVE ALL CAPS EVEN THOUGH IT’S HARD TO READ AND IS INTERPRETED AS SHOUTING).

  • "Per 16 C.F.R. Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising I am required to notify you that I received the product from ABC Company without any payment or obligation or otherwise." (This one will really make the lawyers happy but will be totally overlooked by all your readers).
The main thing to remember is to disclose how things work between you and the company AND MAKE THE DISCLOSURE CONSPICUOUS.

One other thing: you need to be really careful when you make any sort of statement about results of using products such as “I lost 200 lbs using this product.” Get legal advice on this one.

Another thing: it would be a good idea to send an email copy of your post to the company that sent you the product. They’re now required to monitor these posts.

*Now my disclaimer: This is not legal advice. I’m not your lawyer and you should seek legal advice on this matter because I know all of you have personal attorneys that are at your beck and call since you’re making millions from blogging.

Oh, if you don’t like obeying the law a good act of civil disobedience can’t hurt you, ie: Ghandi.

If you want to read all 81 pages of the new law, here’s the link: FTC Blogger Guidelines.

***

Update to add: Congratulations to Laura from Edmonton, Alberta, Canada for winning this weekend's Shabby Apple Fitness Wear Giveaway! No excuses not to exercise now!

55 comments:

Heather of the EO said...

One correction for you:

I'm making BILLIONS from blogging, not MILLIONS.

:)

Now seriously...thank you for the info. It's good to be informed for sure. It seems as though we'll be fine if we give credit to those that pay us or send us a free product. No need to panic. In my humble opinion.

Heather of the EO said...

Not that you guys are panicking.... Just saying.

Audrey at Barking Mad! said...

@Heather...and to think it all started with that $250 Target gift card you won over at my place! *lol*

Thanks for an interpretation of the FTC ruling. Makes it much easier on my scalp now that I'm no longer sitting here pulling my hair out whilst I decipher the legalese. I am simply the daughter of an attorney and don't play one on TV.

Now back to my money that's piling up all over the floor from my mad blogging skillz.

Heather said...

I started reading the document and got to page 8 before the snoring started. Thanks for the crib notes!

Mary said...

I read a two paragraph summary somewhere--I had no idea the document was 81 pages long! (Don't the highly paid government employees at the FTC have anything better to do than write 81 page treatises to say "if you get something for free or someone pays you to write about their product, you have to say so?").

Today the FTC, tomorrow the IRS...

Anonymous said...

Thank you for your insite. It's great to have a quick rundown on the topic without having to read the 81 page doc!

I personally think this is absolutely insane. Ever heard of freedom of speech?

Next thing you know the FTC will be regulating what you can talk about over the dinner table if you have guests. "Oh well you can't say to your dinner guests that you like this product without telling them the company sent it to you." That's insane!

I feel the same way about my blog. My blog is private, much like my home. While anyone is welcome to knock on my door, I only allow a select few to enter my home. A blog is very similar. I should be able to say whatever I want in my own personal space.

And that's not to say that these things shouldn't be disclosed. I'm just saying it's absurd to force it down everyone's throat.

This whole thing is absolutely unacceptable and is just the beginning of the end.

Daisy said...

81 pages?! The paperwork almost equals special education policy.

oh amanda said...

Thanks for the deciper-ing!

Heart2Heart said...

Michelle,

I wonder if this is part of the new stimulus package designed for bloggers, or is it to take money from said bloggers so we can help stimulate the economy.

I didn't realize that there are people out there making bank for free based on free advertising!

Oh well, I wonder just how far this will go. I wonder if the FTC is regulating this since they did such a wonderful job regulating our financial institutions and need something else to do.

I am stepping off my soap box now and depositing my .02 cents.

Love and Hugs ~ Kat

Lara said...

Thanks for this! I was just sitting here trying to decipher the document when this popped up on my Reader.

All I ever do are book reviews, and I guess it's obvious that the publisher sent me a copy, but I will be sure to disclose that.

Rhonda said...

I'm wondering what took them so long? Considering I do not do the promoting of products (my blog is eensy teensy) so it will be a non-issue. However, just another case of unnecessary policing by our ever so (slight sarcasm here) efficient government. ARGH!

Jennifer said...

I am no fan of the gov't sticking its nose into stuff like this, but it doesn't seem they have 'imposed' any requirements beyond what should be common sense anyway. I always disclose when I receive a product for review or am provided compensation for providing my own opinion.

I don't really think this will affect mom bloggers too much, unless some of those fitness or health mommy bloggers decide to make outrageous claims about extra unordinary results from working out with the Wii Fit they received from Nintendo.

I am hoping this will end up another non issue like the consumer product safety act that was recently lighting a fire under so many blogs. KWIM?

bluecottonmemory said...

One commentary wrote that the advertiser is the one most likely to pay for problems, not the blogger. I don't advertise, but what if you mention a product and they send you a complimentary one AFTER you write about it?

I don't doubt that it's like a piece of ivy-putting a little tendril in that will take over the entire garden!( except I love ivy)

Amber said...

I'm forwarding this to the gal who do product reviews at Mile High Mamas. Thanks for summarizing!

SarahHub said...

Pretty annoying, considering most bloggers already disclose when they receive something for free. (I do.) But I'm small potatoes, so I don't really see the FTC suing me any time soon.

Jordan (MamaBlogga) said...

@ Anon—Actually, no, unless your blog is invitation only and blocked to search engines (and maybe not even then), your blog is NOT a private place. The Internet—forums, websites, blogs, even chat rooms—is PUBLIC. Courts have ruled on this over and over again. (Incidentally, MySpace and Facebook, which both require logins, aren't available to search engines and may be restricted to only your friends, are also public.)

The reason that these companies are sending bloggers free things is because their blogs are public and influential. They want a mention. They want the buzz. Companies do NOT send free products hoping you'll gush over dinner with your friends (well, I'm sure they wouldn't mind, but seriously, that's not their intent).

They're sending products hoping you will wear a sandwich board for a week—make a public proclamation about their product. They want to ride on the trust and influence that you've spent months or years accumulating with your readers. They want publicity—they want a free commercial on your blog. The FTC regulates commercials. That's all this is.

Personally, like many people who've commented here, I agree that this is just common sense and common courtesy. Commercials still carry the "paid celebrity endorsement," and we deserve to know the same thing from others who we "know" and trust their opinion. Telling us you love (or hate) a product you happened to get for free won't damage that trust; withholding that information can. (Especially when you're part of a larger campaign—which is almost always the case—and other people do disclose.)

However, it's unlikely that most mom bloggers will be targeted—and in fact, the law may be completely unenforceable on people who want to bounce IPs or host their sites on a mirror server outside the FTC's jurisdiction.

Marketing Mama said...

Although I typically am a fan of *less* government rather than more, I think this is a good thing. Bloggers can continue to get free stuff and get paid, but they have to be more obvious about their role in obtaining said products, etc.

My journalist training and ethics classes in college taught me this long ago - not everyone else is so lucky.

Thanks for the legal interpretation! :)

Beckie said...

thanks for the info, I was a bit confused by all of this before , but now it is more clear! Thanks for spelling it out

K T Cat said...

Great post. Thanks for clearing that up.

melissa said...

if i don't disclose (which i totally do anyway but this is hypothetical) that i got a snow white dvd/blu ray for free to do a review, i can be penalized 11,000?
doesn't the ftc have something better to do than to worry about what us bloggers are doing?
anyway...
it's all very vague, imho. what about the people that enter the giveaways and win? some people win A LOT of stuff. like vacuums and dvds and appliances. and vacations.
what about them? do they have to disclose?
it's ridiculous.
again, imho.
and for the record, i totally received things FOR FREE. and i'm totally going to talk about them on my blog. :)

Scribbit said...

Melissa--I think what it's saying is not that you will be penalized but if you were to not disclose that you received something for free and blogged about it, what they consider an edorsement, you run the risk of coming to their notice and them penalizing you that amount. It's like speeding, you may not get caught but the penalty is in place if you do.

Personally? I'm afraid I've seen enough cattiness and jealousies amongst some groups of mombloggers from time to time that I can see someone getting turned in out of spite. I do think the FTC will find someone on December 2 to make an example of, so care and honesty and transparency is important. Not that it wasn't before . . .

Blessed said...

I appreciate the simplification of that 81 page document. Basically - be ethical and say you got something for free if you did, I guess this isn't a big deal to me because professionally I work in the advertising and PR field - so this stuff is kinda old hat to me.

Lori said...

Very interesting! It is strange since people choose to go to a site.

It'll be interesting to see if visible disclosures for earnings lead to IRS regulations/enforcement.

Lori said...

Oh, and @Melissa per the accountant Hubby, if you win/earn over $600 over the course of the year (this includes small things like books, or little toys, etc. that accumulate from winnings and reviews), you are supposed to claim it as income on your taxes. However, unless you fill out a 1099 with the company, it won't be on file if you haven't claimed it, there's no proof (which makes it sound like he's a horrible accountant, but he meant if you haven't claimed it in the last three years--or how far back the IRS can investigate your income taxes. SO you don't have to go back and refile if you haven't.)

Beverlydru said...

Thanks to your guest blogger for putting a humorous spin on something that makes my blood boil. WHAT will they try to legislate next?!

Jolanthe said...

I think I'm okay with the new law since I've been letting people know when/if I do a review.

But seriously. Should we all keep our receipts now for those times that we write a review and recommend a product in case the review police come after us?

Sigh.

And 81 pages. Seriously. Because there is nothing better to do with their time, eh?

K T Cat said...

Linked!

Ina in Alaska said...

Oh for heaven's sake!!!

Momish said...

Thanks for the recap. It had me worried in the beginning, but to me it does seem like common sense and basic integrity.

Cookie baker Lynn said...

Thanks for the Reader's Digest version. It does seem like common sense, but do we really need a law to tell us to have common sense? My first thought when I heard this was, "How far behind is the IRS?"

Katy said...

Hi, this isn't really related to today's post but I wanted to clarify something about blogging. You said that blogging relys on increasing readership. I have been clicking on your website and reading everyday, but to be counted as a reader do I need to sign up? Seems like a silly question, but I have no idea how this works.

Just Mom said...

Wow. Thanks for the info.

Angela said...

My blog is locked down to family, so needless to say I don't do reviews. I think the law is good for spelling out what you should be doing, for those that aren't doing it.

Personally, i skip all posts where you do a product review. I'm sure I'm not the only one.

Scribbit said...

Katy--thanks for asking, I'd certainly be honored to call you a reader!

There are many ways of tracking "readership." When bloggers say that word they may be talking about the people who read their blog just as you do, by visiting the site. There are other ways too, many people subscribe to a blog by something called RSS feeds or by having the blog posts sent to their email address. Its strictly a matter of preference and depends on how you like to read.

Angela--thanks for the input. Different posts appeal to different people so yes, I think your opinion on the matter is not uncommon. My husband not only skips my Saturday posts but my recipes on Sunday as well. :)

Patricia Linehan said...

Don't most bloggers do that already? Was it really necessary for the FTC to regulate that?

cndymkr / jean said...

I read a little blurb about this the other night. It will be interesting to see what happens. I'm sure that someone will be made a scapegoat and the chances are that "rival" bloggers will turn on each other. Gah, sometimes laws are more trouble then they are worth.

Katja of Skimbaco said...

I'm so using the "Per 16 C.F.R. Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising I am required to notify you that I received the product from ABC Company without any payment or obligation or otherwise." if you don't mind and consider it stealing your original text.

Great post! Thanks!

Candis said...

Michelle - Thanks for the "poop sheet." No pun intended:-)

Susan Berlien (warmchocmilk) said...

I'm new to blogging and have not received anything or reviewed anything yet. To me it's not the pupose of my blog, but maybe that will change. Good to know there are rules. Thank you.

Lei said...

Well goodness gracious. Thanks for the heads up, Michelle!

Chris said...

I think 'wide readership' is a subjective phrase.

Grace said...

I love your in house counsel's sense of humor. Thanks for the breakdown; I was curious and have enough pages to read without adding 81 pages of text that make my science texts look like thrillers.

Jeana said...

BLOGGERS LOVE BULLET POINTS AND HUMOR WITH THEIR LEGAL OPINIONS. YOU DELIVERED BEAUTIFULLY! THANKS!

Patois said...

Hilarious! Thanks.

Angela said...

@ Scribbit - I never skip a Sunday recipe post. :)

angie said...

Thank you so much for this info! :)

Anonymous said...

On page 46 you will see that journalistic ethics DO NOT apply to mainstream media according to the FTC. They think we don't care if an editor or manager with an MSM corporation gets a freebie and assigns a reporter to do a story on the source of that freebie:

"One commenter asked whether, if the blogger in Example 7 should disclose that he received the video game system for free, must every critic disclose that a reviewed item was provided for free?97 According to the commenter, reviewers in traditional media do not have to disclose this information, and reviewers in nontraditional media platforms such as blogs, online discussion boards, and street teams should not be treated any differently...The Commission acknowledges that bloggers may be subject to different disclosure requirements than reviewers in traditional media. In general, under usual circumstances, the Commission does not consider reviews published in traditional media (i.e., where a newspaper, magazine, or television or radio station with independent editorial responsibility assigns an employee to review various products or services as part of his or her official duties, and then publishes those reviews) to be sponsored advertising messages. Accordingly, such reviews are not “endorsements” within the meaning of the Guides.100 Under these circumstances, the Commission believes, knowing whether the media entity that published the review paid for the item in question would not affect the weight consumers give to the reviewer’s statements.101 Of course, this view could be different if the reviewer were receiving a benefit directly from the manufacturer (or its agent)."

Wrong of the FTC to assume that I do not care about MSM ethics. These regulations are worse than no regulations since they favor the powerful. Also, is there a threat to anonymous blogging now?

Alice Wills Gold said...

I have my own lawyer to read and interpret the law for me personally, but his abridgement may have went something like this..."alice, no one sends you anything free because of your blog, you're all good."

81 pages to say have common decency. No wonder why law school seems like such a waste of time...they are just preparing you for the real stuff. :)

Alice Wills Gold said...

Tell Andrew if his business venture doesn't work out, they could probably use him over at Cliff Notes.

Lori @ Just Pure Lovely said...

This is annoying, and now I'm searching the 'net for a disclosure legal-sounding thing to post on my blogs. Hoping I can just post a link on my blog's homepage instead of in each post.

For the record (not that the FTC will read this), accepting freebies has NOT made me write positive reviews. I have plenty of junk laying around here that will never get featured on my blogs. Why isn't the FTC giving us a BIT of credit --- aren't mommy bloggers the most honest peeps EVER?

Book Dragon said...

I like your in-house counsel ;-)

81 pages? Thank you for the CliffNotes, I know what to do now. Mostly.

Holly at Tropic of Mom said...

Thanks! I disclose if a company sent me something for free. It's only fair. Not that I get a lot of things to review or make money....

Green World said...

Does this new FTC guideline cover drug company's that hire actresses and actors to pimp their drugs? Does it cover drug company's who hire ghost writers-to fake the data on a drug then hire a professional doctor/professor to say he wrote the review of the drug and claim that is is safe? Well guess what-that FTC Trade Law is being broken every day by drug company's on TV, the internet and print ads. Going after the internet little guys-is ridiculous. When did the FTC do anything about Wall Street and illegal trading. Give me a break. This is protecting corporate interests -nothing more. Fight it.

Annie said...

Writing this comment is costing me money. Do I get to deduct it as a business loss? Cuz I could be getting 2 more hits today on my own blog, and that is worth about $.0006 - it's so going in the ledger.

Benita said...

Thank you for the translation! It probably doesn't apply since I'm in Sweden and am under Swedish law but I do have a lot of US readers so I'll take note just in case!