At least three people have asked me what I think about the new FTC guidelines dealing with Bloggers who accept freebies. For those of you who didn’t know it, the rules went into effect on December 1, 2009 in the US, so if you have a blog you better be aware of what we’re talking about.
Here is the video summary, straight from the horse’s mouth:
The Guidelines
So, what is the US government essentially demanding of it’s citizens? Let me sum it up for you:
- …an endorsement means any advertising message that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical…
- Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser.
- …the endorsement may not be presented out of context or reworded so as to distort in any way the endorser’s opinion or experience…
- When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user of it at the time the endorsement was given.
- Endorsers also may be liable for statements made in the course of their endorsements.
- Whenever an advertisement represents, directly or by implication, that the endorser is an expert with respect to the endorsement message, then the endorser’s qualifications must in fact give the endorser the expertise that he or she is represented as possessing
- … an organization’s endorsement must be reached by a process sufficient to ensure that the endorsement fairly reflects the collective judgment of the organization.
- Blah, blah, blah…
Nothing here sounds unreasonable really. They are basically saying that you need to be honest when you talk about a product or service, you need to have actually used it if you say you do, you are liable for your statements if you turn out to be a lying sack of crap, etc.
So what’s the problem? Well, lets get right to it.
The HUGE GAPING HOLES!
Celebrity Exemptions
First of all lets start with this example the FCC gives:
A film star endorses a particular food product. The endorsement regards only points of taste and individual preference. This endorsement must, of course, comply with § 255.1 (honesty, etc.); but regardless of whether the star’s compensation for the commercial is a $1 million cash payment or a royalty for each product sold by the advertiser during the next year, no disclosure is required because such payments likely are ordinarily expected by viewers.
So, let me get this straight… A celebrity (like Oprah) could accept $1,000,000 from Betty Crocker to say that she loves eating those brownies, but I could not? I mean you’re telling me that because Oprah is a celebrity its OK for her to get paid to talk about liking something? But if Betty Crocker gives me a single free packet of brownie mix I have to disclose it?
F**K YOU FTC!!! Ever heard the phrase “all men are created equal“? Look it up.
Ok then, so let me ask this. What constitutes “celebrity”? I mean, at which point do I get to stop telling people that I am getting paid to say something and just say it? I mean, is John P. a celebrity? What would it take to prove that I am one? I mean, I’m #1 on Google for John P. Does that make me a celebrity? My blog gets more traffic than most “celebrity’s” blogs. Does that do it?
How about Cali Lewis from GeekBeat.TV. Is she a celebrity? I sure think so. Does the FTC? I mean, if she talks nice about a Wiget because she likes it, and they give her a kickback on the back end, she doesn’t have to tell me right? Because “…such payments likely are ordinarily expected by viewers…” right?
Morons!
Celebrity Non-Exemptions!
But wait! Lest the concept of Celebrity be misconstrued to give someone carte blanch, lets see what happens if they talk about a medical procedure instead of a brownie!
Consumers might not realize that a celebrity discussing a medical procedure in a television interview has been paid for doing so, and knowledge of such payments would likely affect the weight or credibility consumers give to the celebrity’s endorsement. Without a clear and conspicuous disclosure that the athlete has been engaged as a spokesperson for the clinic, this endorsement is likely to be deceptive.
WHAT? So, Oprah can get paid $1M to say she loved a brownie, but if she gets her teeth whitened for free by a local clinic and she says she loves it – she goes to jail! Holy jeepers batman.
Are you confused yet? Well not as much as me, so let’s continue…
Stickin It To the Experts
A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog†where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog.
He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge… Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge.
Um. Questions:
- What is the difference between an “expert” and a “celebrity”? Why does the celebrity get special treatment? I personally think experts should get the same treatment or better! I care more about their opinions.
- In fact, what happens if the expert comments on the brownie in the previous example? Oh brother…
- Why does the FTC assume that “…such payments likely are ordinarily expected by viewers…” when it comes to celebrities, but that “…readers are unlikely to know that he has received the video game system free of charge…”? That is simply ridiculous! I – like you probably – assume that EITHER one gets things for free.
And besides, getting a crappy little computer system isn’t as likely to make people wrongly endorse a product as getting paid $1M is! I mean, Tiger Woods was pimping OLDSMOBILES!!! Seriously?!? Remember that wreck he just got in? Yeah it was a Cadillac, not an Oldsmobile!
Affiliate Programs
Ok, lets talk about affiliate programs for a minute! Wait… I almost forgot. They left them completely out of the guidelines!
- So, what happens if I write a review of a product and include a link to Amazon.com’s page on the product? I mean, Amazon will pay me if someone clicks on that link and buys it. But I don’t get paid if they don’t buy it! What now?
So, are we going to amend the rules to state that not only if you get paid, but if you might possibly one day get paid, you still need to disclose?
Don’t worry! Newspapers are Exempt!
You may be thinking, wait a minute! What about my favorite news food editor who gets to eat at all the restaurants in town for free so the owners can suck up to them? What will happen to him? Never fear! According to this Boston.com article:
“Newspapers and magazines are not subject to the FTC’s new guidelines, even on their websites.”
Gee, that’s really swell. So, the evil bloggers (like me) need to be controlled, monitored and disclosed – but the heavenly news reporters can continue going about business as usual. Doesn’t that make everyone feel safer already!
Wait a minute! Since Boston.com only has like a million more readers than me, shouldn’t they be the ones having to disclose? How much damage can I really do as compared to them?
Other Hypocritical Crap
So, if the FTC intends to make bloggers disclose every time they get a free Koozie at a trade show and then review a companies’ product, are they going to crack down in these scenarios?
- Lets say that Coke pays $1M in order to get their product onto the American Idol TV show. But how do we know that they really like Coke? And why didn’t they have to disclose the sponsorship payment?
- Verizon decides to have a new nationwide marketing campaign for their cell phone service and they use an Elvis song as the theme for it. Elvis is dead. He can’t possibly endorse Verizon!
- Every person that attends the Oscars wearing an outfit given to them by a celebrity designer is doing it just to get seen. Disclosure?
- Your best friend owns a landscaping business. You’ve been spreading the word to help him drum up some business. You’re not getting paid, but he’s your best friend! And you haven’t been disclosing that! Shame on you!
The End!
If the confusion and inconsistent treatment outlined above aren’t disconcerting enough, keep in mind that I can think of about 20 ways to game the system even with “increased scrutiny”. For example, how about if I just move my business across the border to any other country on Earth and continue paying bloggers for their endorsements? The other 19 ideas are for sale. Just send me some money and I’ll tell them to you. And I won’t even tell the FTC that I got paid to do it!
The bottom line is that whether or not someone gets paid to endorse a product has no bearing on how I evaluate the merit of that product. I take a look at that individual, think about their credentials, evaluate the product, and make a final value judgment – just like the rest of the world. The FTC can’t legislate that. They need to stick to matters dealing with fraudulent behavior and stop meddling with topics where judgment and personal reputations are at issue. Caveat Emptor!
I agree. Yet another half-ass attempt from the American Government. They are trying though, and that is more than I can say for some governments. I believe they had good intentions when drafting the new rules—to get rid of the “I lost 300lbs in 2hrs” crap. However, along the way they lost sight of the goal. Bureaucrats :-)
Great post!!!!
I would very much like to chat w/ you one of these days. You have my email feel free to connect.
Well said, John.
So, I looked up “celebrity” on Dictionary.com (NOT PAID TO SAY THAT)
.. ok.. sorry.. back to my point…
Only two definitions and they include the verbiage; “well-known person” and “renown” .. with synonyms; “distinction”, “note” and “eminence.”
Umm… yeh… savvy attorneys all over the country must be licking their chops while browsing the brochure of their dream cars.
I’m not even a “blogger” and I can easily see the injustice and unequal field of play here.
I do see a positive in this.. but I’ll have to think it through some more before I write it out. Need to be sure my instinct is correct.
Thanks for the thought-provoking post.
Just another example of the government wasting my money to threaten me with criminal punishment for doing something that the majority of people would never believe is either wrong or criminal.
We have media organizations destroying citizens’ lives to make an invalid claim appear valid while distorting the legal system in the process. Hardware conglomerates are colluding to remove all consumers’ fair use rights to purchased content. We have ISPs leveraging their power to deny the ability for citizens to build their own local ISPs in order to provide better, faster service. There is a huge mess with software patents that allow companies to use patents not to protect their own ability to produce products but to suck money from genuine innovators and small software companies.
Yet, the organization, that according to its website “advances consumers’ interests”, cares more about making a ridiculous policy that declares that their undefined category of “celebrity” constitutes a group of people more important and legally-privileged compared to a normal consumer than addressing these huge issues. No. Don’t fight for the protection of my rights that have been encoded in the constitution, statutes, and case law yet is slowly eroding due to pressure from lobbyists (the same groups that the FTC is meant to defend the consumer against). I’d much rather you focus your sizable budget and manpower on something much more important: deciding whether or not I should trust the next toothpaste advertisement I see based upon the vague notion of the celebrity of the person selling it to me.
Oh… And I say “government” not in a way that represents a body of citizens that legally constitute the government, no, I mean an unelected body of people that are so far removed from the control of the citizenry that they more or less constitute an oligarchy inside the main government.
Great comments John. I have to agree that I think the basic concept is very reasonable (i.e. disclosure) and I originally felt that this was a good thing…as many bloggers somehow feel the internet is their personal playground, and societal rules on speech do not apply.
HOWEVER, these exemptions you point out are WAY OUT OF LINE!
Ah, the fun nuances of “celebrity” – which, btw sounds like you need to make a video with vanilla ice.
:P
Dpak
This just feels like one of those cases where a government entity (any government entity) notices something in the world is moving around and past them, and decides to spin around in circles making its best approximation of meaningful noises for a bit, in an attempt to look less than totally oblivious to its surroundings. The less knowledgeable about the subject matter any random observer is, the more likely the government entity is in accomplishing its effort to not look so clueless. And the government actually realizes here, I think, how little they understand what they are trying to regulate, evidenced by the wide spread of official messages about whether there will, won’t, or might be any enforcement of the guidelines. Incoherence goes up as understanding goes down, resulting in guidelines that look like they were written with a Salad Shooter.