The FTC Guidelines, Whining, and Bad Bargains

Since the FTC released it’s guidelines for blog reviewers, I’ve been trying to coalesce my reaction and explain why I’m so irritated. The reaction to this post will likely be that I’m arguing against transparency. I’m not. I’m quite in favor of it.

What I am against is whining.

Since the FTC guidelines were released, I’ve heard and read several versions of the following statement on many, many sites and from many people: “I think this is a great idea. I can’t understand why you’re disinclined towards transparency. Shame shame! I myself have been burned by bloggers not disclosing the source of the product they were reviewing!”

Abraham Lincoln wrote in 1842, “My old Father used to have a saying: If you make a bad bargain, hug it all the tighter.” Still true, but I’d say instead: “Put on your big girl panties, quit whining, and get over it.”

What the FTC is attempting to do is enforce a method of curation by mandating disclosure, and subjecting only a portion of the reviewers publishing currently to its guidelines. While the FTC guidelines make me all kinds of irritated, it’s the response and the questions of curation and double standards that really tick me off.

Whether trusted sources come from the bottom up or the top down is still up for debate. Chris Kimball wrote about this topic in the New York Times this past week, though he was talking about the demise of Gourmet and the rise of the online user-built database of recipes. Kimball is the founder of Cook’s Illustrated, and host of one of Hubby’s and my favorite cooking shows, “Cooks Country,” and its predecessor, “America’s Test Kitchen.” We also think he’s a sanctimonious douchenozzle, and very much assured of his own superiority. However, his company’s recipes are excellent. He writes:

The shuttering of Gourmet reminds us that in a click-or-die advertising marketplace, one ruled by a million instant pundits, where an anonymous Twitter comment might be seen to pack more resonance and useful content than an article that reflects a lifetime of experience, experts are not created from the top down but from the bottom up. They can no longer be coronated; their voices have to be deemed essential to the lives of their customers. That leaves, I think, little room for the thoughtful, considered editorial with which Gourmet delighted its readers for almost seven decades.

Key point: “their voices have to be deemed essential to the lives of their customers.”

By whom? By their readers, I presume.

Side note: Kimball’s recipes are the result of expertise on the part of the chefs in his kitchen team compiling an aggregate of recipes for a particular food, testing and then making their recommendation for the best one. But I didn’t start buying the Test Kitchen cookbooks until they consistently produced recipes I used over and over and therefore justified my expenditure. I had to verify that their tastes matched mine, and even now I read their magazines to look for specific names, knowing those cooks have similar preferences to mine. My point: they are curating, and I’m curating, but somehow the published curation by an expert, instead of the additional curation by the person using the recipe at hand, in Kimball’s perspective, is better. I disagree.

The evaluation and selection by the reader on her own subjective analysis makes much more sense to me, especially when I can comprehend their subjective rubric of the original critic.

This curation done by the reader is echoed in Jeff Bercovici’s examination of the FTC regulations at DailyFinance.com:

It may be there are some unsophisticated consumers out there who can’t tell genuine criticism from sponsored flackery and who have spent money on shoddy products because of it. So be it. The Constitution doesn’t empower the government to protect people from their own stupidity. It does, however, guarantee the right to free speech.

This concept was embraced the day the FTC released it’s 86 page recommendation on Twitter in 140 or less by Shannon Stacey:

Dear government: No amount of legislation can protect stupid people from themselves. Also, not your job.

Aside from the nebulous boundaries of the FTC guidelines, and the fact that they spend much of the document talking about high ticket items but make no provisions for the potential of a $11,000.00 fine potentially being leveled at a blogger who wrote about a $7.99 paperback, my biggest frustration has been the reaction that draws inaccurate parallels. By protesting the extremely broad scope and the nebulous limitations in price point, those against the guidelines are somehow trying to obfuscate their evil, nefarious agenda.

Let me be clear here: you are responsible for your decisions. When you decide to take a recommendation, and it doesn’t work out for you, you bear some to all of the responsibility. I refuse to have responsibility enforced against me because I can’t remember the provenance of a book I received bought borrowed or stole from the library when I was 15, and that lack of memory in some way colors the ethics and value of my review. In my interpretation, the FTC’s regulations are attempting to shift the responsibility off of the consumer, who needs to caveat her mother fucking emptor in a big damn hurry, and on to me, in what I see as a big slap to free speech.

The “thoughtful experience” Kimball writes about regarding Gourmet magazine applies to book bloggers as well. You, the user, the shopper, the reader, have to decide whether you think my or anyone else’s experience is meaningful to you. You are responsible for evaluating your sources and deciding what you are willing to pay for, whether it’s a book, a dvd player, a car or a freaking island. Whether you decide to trust Consumer Reports or a blogger who works at a car dealership and won’t reveal his name for fear of getting fired, YOU are responsible for vetting your sources as they influence your decisions. And I’ve said it before and I’ll say it again: I’m as full of shit as anybody.

What are you willing to pay for? Are you going to trust content you have to pay for online? Or do you prefer content that is free? And if it’s free, are you ok with knowing that the content that is free may be supported by a paid or unpaid writer producing that content?

As bloggers, our only currency is our credibility. To be a successful blogger, you need credibility, consistency, and authenticity. Hypothetically speaking, if a blogger you read regularly begins reviewing products that you didn’t think he or she could afford without saying how she ended up with a $600 stand mixer, would you be suspicious? If a blogger whose site you adore begins to reveal that the entire premise of her site is based on an outright lie, do you stop reading?

If you do your homework, which is to say, if you read a site consistently, or follow a particular reviewer consistently, you can get a sense of what tastes you have in common, and what things you disagree on. You get a sense of their rubric – in other words: what makes an A book for them, and what makes a big ol’ stankin’ F.

What makes me the most angry is that, for many people, myself included, that same credibility must be established for print reviewers as well: they have to demonstrate experience and expertise in order for people to trust that review. They may have a slight advantage because a major publication hired them, but if someone is serious about the product being reviewed, “Take my word for it, I work for The Giant Newspaper Times” is not credential enough. I’m not alone in that assessment, either.

Markos Moulitsas, better known as the Kos of “Daily Kos” weighed in on the FTC regulations and called them on their double standard of media disclosure:

And most people reading reviews expect that companies send out review copies. If I read a video game review site, I assume that video game companies send out review copies (and anyone who reads those sites know, not all games get good reviews). If I read a gadget site, I expect that gadget manufacturers sent review copies to those sites for review. If I read a car site, I assume that car companies loaned out cars (along with insurance) to the reviewers.And yes, if I read a book site, or political site discussing political books, I assume those sites received review copies.

Here’s what I don’t expect—that every writer at a newspaper or magazine gets paid to write. In fact, the smaller the publication, the less I expect that.

That right there is why the internet is my favorite place: the USER is her own gatekeeper. No one’s stopping you from blogging. No one is stopping you from writing. Therefore, no one is responsible for your decision to read or not to read, to buy or not to buy. You can read whatever you want – and regardless of the obscurity of your interest, I promise someone on the internet shares it. But you are responsible for determining whether to believe your source, particularly when you’re demonstrating your belief in that source with your wallet, whether it’s a $8 paperback or an $80,000.00 car.

Kimball writes in the Op-Ed piece:

To survive, those of us who believe that inexperience rarely leads to wisdom need to swim against the tide, better define our brands, prove our worth, ask to be paid for what we do, and refuse to climb aboard this ship of fools, the one where everyone has an equal voice.

Right back atcha, Chris. To survive, those of us who have worked for months or years to establish our credibility and have left a written archive of our experience need to swim against the tide, too, to continue to define our own brands without the masthead of a print publication above or beneath us, to prove our worth as sources who are not out to fleece consumers of their money or paid media outlets of their profits, and whether or not we are paid for what we do, we have an equal voice, with equal value and potential influence. We should not be subject to broad, unfair, and poorly defined guidelines that do not affect other media outlets but that do threaten consequences against everyone writing online reviews. When the FTC’s target represents only a small portion of the reviewers writing today and the guidelines meant to curb them threaten us all, there’s something seriously, hideously wrong.

 

Categorized:

Ranty McRant

Comments are Closed

  1. 1
    Tina C. says:

    When the FTC’s target represents only a small portion of the reviewers writing today and the guidelines meant to curb them threaten us all, there’s something seriously, hideously wrong.

    And that’s the rub, right there.  That’s the thing that will eventually get these regulations either tightened up or scrapped completely.  It is ridiculous to write a set of rules that only apply to the a portion of a particular populace based on some ridiculous idea that this group is inherently more or less more ethical than that group.  The first time this gets challenged in court—and there’s no way that it wouldn’t, eventually—it will fall apart.  I think that they are relying on the fact that most bloggers are too poor and/or too scared to take it on and will simply knuckle under.

  2. 2

    I really love it when the government puts out regulations that they have no means of enforcing. Seriously, I would love to have the job of surfing blogs all day to see if they have announced a review copy or not.
    On the flip side, if I know that someone is being paid for a review, it might mean less to me than someone who tells what they think, regardless of source of item. I trust consumer reports but I’ve developed that trust over proof of purchases over the years. If I found out they were receiving paid products, I’d probably have a different opinion.
    But that’s my choice. And yes, I’m a firm believer in buyer beware but if we don’t do it for the politicians (ie who’s gotten major amounts of money from the XX -choose one -industry to oppose reform) then why the hell are we worried about a book review blog? This smacks of unenforceable hypocracy.

  3. 3
    MicheleKS says:

    You’ve nailed it perfectly to the wall again, Sarah. Great post.

    I think the FTC is trying to be a nanny to all the dumb consumers who can’t use their critical thinking skills. But in my not-so-humble opinion, if a person doesn’t have critical thinking skills and is unable to thoughtfully process information and form their own opinions, then no amount of government regulation is going to help them.

    I like reviews because I can see a particular opinion and think about it. I can also use the information prsented in it to help me decide if I want to read a book or some other product or service. But I will read reviews closely to see if it is a thoughtful analysis or someone just grinding an ax on something.

    And also, as my mother was very fond of saying: If it sounds too good to be true, then it probably is.

  4. 4
    JoanneL says:

    The FTC could have saved a great deal of the American tax dollars by simply issuing a regulation that states any and all people talking/writing about ANY product or service would have to have the same tag that is taught to our pre-schoolers: STRANGER DANGER.
    Simple, to the point and puts the onus back on the consumer. Or in other words: take responsibility for yourself and your purchases.

    “I think this is a great idea. I can’t understand why you’re disinclined towards transparency. Shame shame! I myself have been burned by bloggers not disclosing the source of the product they were reviewing!”

    Really? I would be mortified to admit that I spent money on anything based solely on the opinion of a another person including those from the hallowed halls of Consumer Reports.  I have learned time and again Consumer Reports has different criteria for rating the products they recommend than the ones I actually buy. Again, they are strangers to me.

    That leaves, I think, little room for the thoughtful, considered editorial with which Gourmet delighted its readers for almost seven decades.

    My personal thoughtful, considered opinion which contains a lifetime of experience: Get The Fuck Out Of The Kitchen. Play with the kids, take a walk, fight with someone you love, read a book. You’ll have more time because you aren’t sifting through the a (PAID) advertisements in Gourmet magazine.

  5. 5
    Tina C. says:

    It’s been mentioned before that the only way that the FTC could possibly keep track of whether or not a reviewer was in compliance is through someone complaining.  This, of course, could lead to some serious abuse if the blogger has a person (or group) who doesn’t like him/her.  I was telling my husband about this and he wondered if these new regulations aren’t some way for a politician or political party to go after a blog or blogs that they don’t like.  Of course, he does look at everything through a political lens, but even if that didn’t spur the initial regulation, it wouldn’t surprise me if some enterprising soul came up with a way to do just that.

  6. 6
    teshara says:

    I’d be very curious as to what they’d do if thousands of people started posting book reviews in their blogs daily…

    Sounds like a job for Anonymous!!

  7. 7

    I agree that if someone base their purchases on one review of any product they are doing a disservice to themselves. Even if the opinion they use is my opinion. ‘Please read more before you commit’, that is what I told my children seems logical to me.

    The government coming in like a bulldozer and ‘leveling’ the building because of a few pesky rats is to put it ‘nicely’, stupid. The aftermath is a pile of rubble that people have to sift through…while the rats have made a new nest somewhere else.

    By the way this is my opinion, non-paid, and I only used one cup of coffee to write it. No review copy was used. I could have used more coffee though.

    Be well ,
    Debra

  8. 8
    ev says:

    This is coming from the same government that has products labeled with some of the stupidest things going- all because some idiot did something that anyone with an iota of common sense would do. Don’t use a blow dryer in the tub.  Contents may be hot (on a coffee cup) Pick up an item- they all have stupid do’s and don’ts on them because some idiot did it, sued and won.

    Whatever did happen to free speech? Isn’t a persons opinion free speech? I didn’t realize that that particular ammendment had been changed.

    On the flip side, I take it that this means I can go after all those people who said Twighlight was great, and wasn’t?
    I read reccommendations from sites like this because I trust them. It doesn’t mean I have to agree with them, but I have been pointed in many directions I would not have gone if I hadn’t read them. But I am capable of forming my own opinions, researching things that need researching before I make major decisions (books are not a major one, just a big part of my decision making), and spending lots of money. I have bought lots of crappy books, long before blogs were the thing. Who can I go after for thoes????

    Excuse me while I go defend my 2nd Ammendment Rights before someone else tries to take them away too. Again.

  9. 9
    Anna/ocelott says:

    What annoys me most is that the FTC doesn’t seem to know how they want to deal with their own legislation.  The more questions people ask about how exactly we’re all to follow their rules, the more their story changes.  Most recently, they made what I find a troubling announcement, that they’ll be more likely to go after advertisers (ie: publishers and authors sending the ARCs) than the bloggers.  So… if I make some hyperbolic claim that “this book was so clever, I’m pretty sure my IQ rose by at least 10 points just by reading it” and Joe Schmoe takes my statement literally only to discover his own IQ does not improve (pity, since he seems to need it), it’s the publisher who kindly provided the ARC who gets in trouble for something I said?  In what kind of twisted logic universe does that make sense?

  10. 10
    Ethan says:

    I haven’t read the FTC regulations, but I’ve been a fan of posting an ethics statement that explains what is being reviewed, how. Your disclaimer on the sidebar is a great example.

    Now that I work in the beer/wine biz, I refuse to post wine reviews online as it can only come off as shilling, whether I like the wine or not. Plus I’d have to preface my remarks a lot with “even though [distributor] has a gun to my back demanding that we stock 8 cases of this, it’s really not bad.”

    To my recollection, pre-FTC rules, I believe SBTB has been very good about disclaiming ARCs, etc in reviews. I’m not a romance reader (BIG fan of this blog, big ups and much love) but indeed, I do put a greater emphasis on your experience as romance readers than any would-be backroom dealing to promote a book.

  11. 11
    Laughingrat says:

    “My point: they are curating, and I’m curating, but somehow the published curation by an expert, instead of the additional curation by the person using the recipe at hand, in Kimball’s perspective, is better.”

    That’s not what Kimball, or anyone speaking in favor of educated, professional, or devoted experts is saying.  That’s a false contrast.  Experts do not think that individuals should not evaluate information or products and use what makes the most sense to them.  Experts are frustrated, justifiably so, that people en masse are not evaluating at all, but rather accepting any information that rolls across the internet, or any product pushed at them with persuasive advertising.

    Experts are also frustrated that their education, passion, hard work, and dedication are routinely and vigorously denigrated by an increasingly anti-intellectual society, or by a defensive populace determined to pretend that everyone knows everything equally, and that there’s nothing good or special about knowledge and education.  Expertise is fluid: you know more about the romance genre than I do; I know more about handspinning than you and Kimball do (that’s a wild guess—you may both be expert spinners for all I know); Kimball knows more about cooking than both of us put together.  Acknowledging that doesn’t lessen any of us.

    In other words, I’m surprised to see you, an expert, be so eager to denigrate a expertise that you set up this false dichotomy and argue from it.

  12. 12

    What I find fascinating about all of this is really, they are hitting up the wrong people to regulate.

    It’s not the bloggers, it’s the folks out there in the beloved public relations industry who are paid by their clients to write up blogs that “seem” like reviews, news, feature articles, interviews, etc. all written by the publicist and then pandered off to well meaning sites looking for content not realizing it’s been copiously designed and thoroughly researched to influence the masses.

    Should people be smarter consumers than that? Yes. But on any given night I can watch the evening news and tell you with a 98% predictability which pieces were placed by a publicist. I can watch a politician and tell you what the key phrases his speech writers were told to use by his pr team.

    This is what publicists are paid to do—influence your decisions below the level of your awareness. If the FTC is going to pick out a specific niche in the marketplace to call out, why would you pick on the poor blogger who is exercising his or her right to free speech? Why would you pick on the author who is trying to get a legitimate review of his or her work?

    Moreover, doesn’t seem odd that it’s utterly unenforcable? OMG the sheer amount of man hours it would take just cruising the Internet—hey—wait a minute—anyone else think that perhaps there could be a group within the FTC who all got together and were pissed off to be told they couldn’t surf the net on their work time so they came up with an ingenious plan to get paid to do it? —anyone—ok, never mind, perhaps it’s just me uncaffinated.

  13. 13

    What kills me about this FTC reg—aside from all the nonsense you’ve nailed perfectly—is that if you, the blogger, make a deceptive statement about one of our books, then we, the publishing company, can get fined for it. They charge us with an affirmative duty to monitor the content of online book reviews, and to demand that you correct content they might find objectionable. They say that they require nothing more than the provision of a free or discounted ARC in order to charge us with this duty and potential resulting fines. Seriously.

    So has the FTC just handed publishing companies a way to mandate a certain kind of content in reviews?

    If so, where is that fun little line to be drawn?

    “Dear Blogger, In your review of “The Pregnant Virgin’s Revenge Sex Adventure,” you claimed that the author had “phoned it in” and that the book “might as well have been edited by toddlers with crayons.” In fact, the author mailed the manuscripts and has postal receipts to prove it. Also, her editor has a birth certificate and other documents to show that she is a legal adult, and she has retained copies of the line edited text on which not a single crayon mark may be found. We hereby demand that you remove these comments immediately in accordance with FTC requirements regarding deceptive statements. Sincerely, The Publishers.”

    Way to foster the free exchange of ideas, FTC! High five!

  14. 14
    Roxanne says:

    I’m just waiting for the day when the FTC calls Kimball out on the floor for his claims that ATK is the end authority on cooking. They are not, and Kimball’s arrogant attitude pisses me off to no end. He goes after bloggers (who have lots of experience cooking) who dare to post and blog about ATK recipes. ATK, in my professional cooking opinion and in the opinion of other professionals, does a piss poor job on ethnic recipes, especially Asian, but every time they publish a story on an Asian recipe, they tout it as the “best version.” Hogwash. Cooking is subjective. The claim of a “best recipe” is nothing more than an opinion. It’s the same for product reviews.

  15. 15
    Ciar Cullen says:

    While I agree the buyer is ultimately responsible, there is a burden on companies (*not saying this applies to you) to tell the truth. An example, “car of the year” awards are BOUGHT. Lobbied, wined and dined, and outright payola. If you hadn’t seen the expose on this, you might believe an independent agency had conducted a unbiased review. They need to go after this sort of stuff.

    Unless you are paid to review a book (including being schmoozed by the author or publishing house with dinners, etc.), it should not be subject to having to make disclaimers.

  16. 16
    Lady T says:

    Ever since this story broke,I have been waiting to hear what the SBs thought of this whole mess(the early listing of your “Disclaimer” gave me a clue) and thank you for putting those who insist that this is “something you should be doing anyway” on the spot. What difference does this so-called transparency make to the content of the review and how someone perceives it?  Just because someone works for a magazine or a newspaper,that doesn’t mean that their writing can’t be influenced by outside sources as well.

    Most people know about review copies( I certainly do,from being a former book seller)or at least know that reviewers are getting free samples to check out-if anyone thinks that Roger Ebert pays for his own movie ticket,then there’s a bridge in Brooklyn I’d like to sell to them:-)and if you don’t trust the review,then by all means,seek another from a place that you consider to be a more reputable source. Forcing bloggers to abide by these draconian standards is insulting,to say the least.

  17. 17
    Lindleepw says:

    Am I the only one who wants to read “The Pregnant Virgin’s Revenge Sex Adventure” now? Sounds really good!

  18. 18
    SB Sarah says:

    Cooking is subjective. The claim of a “best recipe” is nothing more than an opinion. It’s the same for product reviews.

    This is my point. Reviewing books is subjective, too, and expertise is very much, I think, nebulous at best when you look at reading or cooking. Hence I challenge the idea that experts should be “coronated,” to use Kimball’s word, by their own familiarity with a particular technique or product in an entirely subjective field.

  19. 19
    Jay Montville says:

    A few things:

    1.  the guidelines are not laws, which means that there is no fine for a violation of the guidelines.  There is only a fine ($16,000, by the way) for a violation of the trade regulation laws, which would require that the person or entity in question is engaged in an unfair or decpetive trade practice.  It would take a heck of a lot more than a failure to disclose that you got a $7.99 book for free to result in that.

    2.  While I appreciate what you’re saying about caveat emptor w/r/t online reviews, I think that we’re overlooking something major: most people aren’t as savvy as they should be about things like that.  It wouldn’t occur to many people that the movie review blog they follow gives better reviews to movies from New Line Cinemas than those from Paramount (heck, it wouldn’t even occur to them to notice what production company the movie’s from).  They wouldn’t think about the fact that the mommy blogger they follow only mentions brand when it’s the brand that sends her free stuff.  They do, however, understand that the local newspaper book reviewer gets her books for free.  That’s common knowledge.  Whether a book review website does or not is a gray area. Hence, disclosure.

    3.  Actually, it is sort of the FTC’s job to be a “nanny” or a mommy to consumers—their mission is consumer protection.  They protect people from all sorts of stuff that they should know better about—false claims of weight loss or cancer cures from “miracle” pills, “sales” that aren’t really sales at all, telemarketer calls at all hours of the day and night, etc.

    4.  The enforcement of the Guidelines will be directed at businesses, not individual bloggers.  So, yes, that means that if a publisher sends out a bunch of ARCs to book bloggers, the publisher should follow up and make sure that there’s a disclaimer on the reviews.  Yeah, that’s a huge pain in the ass, totally.  But it doesn’t mean that if a blogger makes an inaccurate statement about a book—e.g., saying the author was edited by monkeys, when in fact the author was edited by an actual editor—that the publisher has to care.  If the blogger says “I got this piece of crap book for free from the publisher, who obviously didn’t spend any time editing it,” the Guidelines have been satisfied.

    I’m not a huge FTC apologist—the Guidelines are annoying and I get why people are annoyed.  But they aren’t the huge deal that people seem to be making them out to be.

  20. 20
    Lindleepw says:

    I think the FTC just opened a can of worms, and good luck on cleaning up the mess. I’m still a little unclear on what exactly the FTC is trying to regulate, but from what I understand they want bloggers to disclose when the product the blogger is reviewing has been a gift from the publisher, manufacturer, etc. I guess the reasoning behind this is so that we the consumer will know whether or not the blogger is being paid to give his or her opinion. Do I have this right?

    If I have this right, well, FTC I, as a consumer, just don’t care. I really don’t care if someone has been paid to give me their opinion on a product because I don’t buy anything based solely on someone else’s say so. Will it influence me? Yes. But I consider the source before I go out to buy something. For example, I don’t go out and see every movie simply because every trailer has some quote from someone telling me it’s the best movie of the year. I know these people have been paid to say that, and I don’t care. I don’t trust them anyway. Not every movie is the best movie of the year. However, if my best friend tells me she thinks I’ll like a certain movie, I’ll probably go see it. She knows my taste and I trust her judgement.

    Also, I’d like to say I made my decision to buy my Kindle based on what I read online. No one I knew had it so I had to decide whether or not to buy it from what I read online. I read a lot of the reviews on Amazon. I read a lot of articles discussing it online. The point is I read a lot. If something is truly awful, that opinion will be out there. From what I read, there were positives and negatives to the Kindle. I’m not disappointed with my Kindle because I knew the negatives going in and I’m okay with them.

    Anyway, I agree with those who feel that the FTC are trying to protect people from their own stupidity. In which case…good luck with that too!

  21. 21
    Teresa says:

    At risk of offending pretty much everyone, I’d like to make a couple of points. First, as a lawyer who has represented many consumers I have to say that I really appreciate that we have consumer protection laws and the FTC in particular has been a great resource to me in protecting my clients over the years.

    As to these guidelines they are an attempt to update interpretations of the truth in advertising law, which requires disclosure of endorsements. The purpose appears to be to prevent a blogger from appearing to be an ordinary consumer when he or she is actually being compensated to provide an endorsement. The guidelines indicate the central question is whether the blog (or individual post) is sponsored. To answer this question, the FTC suggests looking at the totality of the circumstances. One factor is whether a product was provided for free for purpose of review (as opposed to a freebie that is handed out in a more general way, such as to all conference attendees), but this is only one factor. Other factors are whether there’s an agreement of some kind, whether products are routinely provided, the value of the product and the list goes on.

    These guidelines do not have the force of law, but they are intended to give people an idea of how the FTC is likely to enforce the law (which comes from Congress and which the FTC is obligated to enforce). Based on many years of experience in consumer law, I think it is unlikely the FTC would go after a book blogger. Where a book blogger is acting in the same way as a traditional print reviewer, receiving review copies and posting reviews based on her opinion, there is clearly no endorsement. The guidelines do not create a presumption that there is an endorsement in this situation.

    There is no question that blogs and social networking are being used by advertisers, just as TV and radio were used back in the day. It is deceptive, under federal law to endorse a product in a way that makes it appear to be an unsolicited endorsement without disclosing a relationship with the manufacturer or marketer of the product. If we truly want to return to the day when David Letterman could sit on his show and say—I sure do love smoking Marlboros without disclosing the fact he is being paid to endorse that product, then the solution is to write your congressman and ask them to repeal the truth in advertising Act. Otherwise, it seems to me it is fair to apply the same standards to blogs and other social media as we do to television. If there is an endorsement, it should be disclosed.

  22. 22
    Atsiko says:

    I’m already completely transparent.  I don’t need some stupid guidelines to tell me how to blog intelligently.

    And I certainly don’t need the government wasting tax money protecting idiots on the web.

    And what about people not reviewing from review copies.  ‘ve seen tons of indie bloggers reviewing older books.  Are they subject as well?

    (I haven’t read the guidelines myself, but I plan to do so at the earliest opurtunity.)

  23. 23
    Tina C. says:

    The purpose appears to be to prevent a blogger from appearing to be an ordinary consumer when he or she is actually being compensated to provide an endorsement.

    I have two things to say to what you said.  The first is that if you are going to apply this to bloggers (and Facebook and Twitter, from what I understand), it should be applied equally to ALL reviewers.  The New York Times reviewer and the Wired magazine reviewer and whoever should be held to the same standard as Dear Author or http://www.technologyreview.com  The .presumption that the blogger is somehow less ethical because they are getting free stuff is insulting.  The person getting paid to do reviews at a print publication is also getting free stuff, but somehow they are free of any taint because, technically, the stuff was given to their publication?  Really?  Where is the logical progression for that?  Basically, the FTC is saying that all print media reviewers are saintly and pure and all bloggers sneaky little shills.  Sneaky little shills who have to be monitored because they are secretly getting a free book or a free game or a free whatever to review and they posted a link to go and buy said item (even if they gave it a less than stellar review).  Speaking of bias here.  Seriously, even if you believe that we need to protect the consumer from the unethical, disreputable blogger-reviewer, how can you possibly believe that the same can’t be said for Joe “Hey, I got a job at People to review books!  Wanna a free ARC?  I gotta a million of ‘em!” Blow?  Make the regulations apply to all or strike them down.  Otherwise, this is just a legal challenge waiting to happen.

    Second, I can guarantee you that if some blogger-reviewer is a paid shill for some company or publisher, someone knows.  That someone doesn’t just know, he/she is posting it online somewhere.  It is being talked about on 15 different blogs at any given time and there are at least 3 twitter conversations about it.  There are comments about it in the shill’s review posts from people that are pissed off about it.  There is simply no scandal so small that it isn’t being discussed to death somewhere.  While I’m not all laissez-faire about it, I do believe that you should do the minimum amount of research on anything that you know nothing about before you buy it.  That means you read more than one review about something.  If you read one review and it’s all glowing and sparkling and “THIS CHANGED MY LIFE!!!” and three others call it an abomination on mankind, perhaps you should look further into 1) the product and 2) the “blew sunshine up my ass” reviewer.  Guarantee, if that person is in any way shady, you’ll find out.  Yes, we have an obligation to protect the innocents, but the innocents have an obligation to not blindly follow someone off a cliff just because someone yelled, “Hey!  Come this way!”

  24. 24
    SB Sarah says:

    There is simply no scandal so small that it isn’t being discussed to death somewhere.

    Welcome to the Internet. I’m your guide, and my name is Tina C. Next we’ll be discussing captioned cats. Please step this way.

  25. 25
    JennyMac says:

    This is so unbelievable, right?

    Perhaps the FTC who is so quick to establish mandates and rules can work with the Healthcare Advisors and get insurance for people who need it.

  26. 26
    Teresa says:

    @ Tina C

    I agree that print reviewers should be held to the same standard as bloggers. The truth in advertising law does apply to them. There is nothing in the FTC guidelines indicating that bloggers are presumed to be shills. The guidelines only indicate that if there is a relationship such that the blogger is “sponsored” by an advertiser, the blogger ought to disclose. The FTC guidelines do not suggest the obligation is limited to bloggers. The point of the updated guidelines is to make it clear that the same rules that have always applied to everyone also apply to new media. If there is any assumption it is that advertisers will take advantage of consumers in any way they can. There is no assumption that bloggers are more or less honest than those working through print, TV or radio.

    Also,the FTC always encourages consumers to do their homework and research before buying a product. The purpose of the Commission is to help consumers make more sensible decisions by reducing unfair or deceptive trade practices, including deceptive advertising. The policy is based on the notion that advertisers have more power than single consumers. Perhaps the internet is making this policy obsolete and consumer protection is no longer necessary because consumers can share information on the internet. I don’t think we’ve reached that point yet, but it may be coming. When it does we can disband the FTC. They have a nice big building that could be turned into condos and sold to help pay off our government debt. :-)

  27. 27
    Jane Dinham says:

    What fines does the FTC impose on bloggers who repeatedly misspell “its” as “it’s”? This is far more corrupting to the general state of public literacy than any amount of undeclared free copies.

    Or do you voluntarily donate $10 per surplus apostrophe to a literacy charity? (now on the way to becoming billionaires)

  28. 28
    liz m says:

    There wasn’t an easy way for the FTC to address Miss HK? I mean, I’m sorry the honcho got burned, but he should have googled her before buying everything she suggested and wiping out his 401k.

    Also, was Tina C given a free cat? I think before we have the captioned cat class I have a right to know if she in some way benefited from cats or captions. And was Christian Lander given a white person? And by whom? If not, how does he know what they like?

    (spamword: anyone69. Oh my!!)

  29. 29
    LadyRhian says:

    I admit I felt my stomach drop a little at this. I blog about what I read- all my books are either my own copies I purchased somewhere or ones I checked out of the library where I work. I only blog about what I read about, and make sure people know it’s only my opinion.

    I guess I’m worried about what might happen to me if someone decides my practices are deceptive. I hope I have nothing to worry about.

    Spamword: Income34. I get no income from blogging.

  30. 30

    Teresa,

    As someone who is exercised about the guidelines, I have to say I think your points are valid, but kind of irrelevant.

    First, the coy suggestion that it’s okay because the FTC won’t fine the bloggers, but will go after the “advertisers,” doesn’t make me feel much better.  In part that is because, hello, as the author of a book, I am the “advertiser” in the FTC’s little scenario.

    I have sent free copies of my books to bloggers.  And to regular people.  I give my books away on twitter from time to time, or on guest-blogs, or on my website.  I do so with the hope that people will like what they read, but not with the expectation that they do so. 

    To say that I must monitor those people to whom I have given those books, or risk an enforcement action? I’m just one person. I have a day job.  I’ve given away at least 60 copies of my debut anthology, and I don’t know where all these people post (or if they do) or what their Amazon reviewer name is (if they have one) or if they’re on Goodreads or Shelfari.  But leaving aside my personal whining, this is not only a heavy burden to impose on me.

    In essence, under the new guidelines, the FTC is attempting to dragoon me and everyone else who is similarly situated into stifling speech.

    As I explained on my website, I have a problem with mandatory disclosure: I think that under our first amendment jurisprudence, mandatory disclosure threatens anonymous and pseudonymous speech, which makes it more difficult for people, particularly insiders, to discuss political and cultural issues in a critical fashion, without fear of reprisal.

    I feel very, very strongly that the FTC’s guidelines are unconstitutional, and as a purported “advertiser” I think it would be deeply, deeply wrong for me to attempt to enforce disclosure on their behalf.  It’s unconstitutional to require disclosure as to non-commercial speech, and I’m not going to request or require disclosure of people I give my books to, because I feel it may stifle the debate.

    So yes, I’m sick and tired of hearing that it’s okay, because the FTC will only go after advertisers.  Thanks, but that doesn’t help.  All that means is that now, in addition to the FTC, we’ll have authors and publishers who feel obligated to police unconstitutional guidelines.

    Second, Teresa, it is true that the FTC’s regulations are not themselves law, but are only the FTC’s interpretation of the law. But I think that distinction is a bit disingenous.  The FTC’s interpretation isn’t just like the FTC saying, “Oh, this is what I think the law is; you may disagree, but your mileage may vary.”  The FTC’s interpretation of the law matters, hugely, in Court.  It’s given extraordinary deference under Chevron.  If the FTC’s interpretation is reasonable, it wins.  Besides, the FTC’s statement gives some idea of how the FTC will exercise its prosecutorial power.

    I also think, Teresa, that you’re attacking a straw man.  Nobody is advocating the abolition of the FTC.  Nobody wants commercial speech to be unregulated.  Nobody thinks that the FDA should just pack up and give up on disclaimers and black box warnings.  Yes, I think people should have to disclose endorsements: that is, paid-for commercial speech.  If someone has an agreement with a publisher or an author to write positive reviews online in exchange for valuable consideration, I do believe the FTC can and should regulate that speech.  Nobody is arguing that David Letterman should be able to smoke cigarettes at the behest of a manufacturer without disclosure.

    People are upset because the FTC is requiring disclosure in cases where there is no agreement in place, and in fact, where there isn’t even a social norm of positive reviews (or even a review at all). The FTC’s characterization of such speech as “endorsement” by the blogger and “advertisement” by the author or publisher who sends the review copy is a slap in the face, both for the blogger who has high ethical standards, and for the author, who tries to make it abundantly clear that people can review (or not review) and like (or not like) her book as they like.

    Nobody who’s complaining about the guidelines is engaging in commercial speech.  And that’s why people are getting upset:  Because it’s not the FTC’s job to make sure that people know when to trust each other.  It’s their job to regulate commerce.

    When the FTC writes guidelines that get at unethical behavior in commercial speech—failing to disclose positive reviews that were paid for by the manufacturer—I’ll applaud.  Right now, what they have covers far, far more speech than the dangers you mention.

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