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:
- …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 endorserâ€™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 endorserâ€™s qualifications must in fact give the endorser the expertise that he or she is represented as possessing
- … an organizationâ€™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!
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 Â§ 255.1 (honesty, etc.); but regardless of whether the starâ€™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?
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 celebrityâ€™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 â€œblogâ€ 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.
- 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!
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 FTCâ€™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
- 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!
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!