FTC Guideline Changes Affects Blogs and Websites

The Federal Trade Commission today announced that it has approved final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act.

The notice incorporates several changes to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address endorsements by consumers, experts, organizations, and celebrities, as well as the disclosure of important connections between advertisers and endorsers.

The Associated Press puts it a wee bit more succinctly, saying, "The FTC will require that writers on the Web clearly disclose any freebies or payments they get from companies for reviewing their products."

I've been racking my small brain, and I can't come up with anything I'm going to do differently here on TOP as a result of the new guidelines. Except maybe to make sure that I make the rules more explicit to outside contributors...most of whom know said rules just fine already. Basically, we disclose up the wazoo. I disclose stuff I'm not supposed to disclose. Because...well, I'm a blabbermouth.

As David Vestal says, we are in the disclosure business. And you, dear Reader, shall be kept apprised, FTC or no FTC. On that you may rest assured.

Mike, TOP's End-of-Line Destination for Proverbial Passed Buck

Comments

[John Camp]

If you don't have any freebees to disclose, doesn't that mean that advertisers don't care about what you say? I mean, that sounds bad.

JC

[Mike Johnston]

"doesn't that mean that advertisers don't care about what you say?"

Nobody cares about my li'l blog except a few of you folks gathered 'round the fire.

[g]

Mike

[James McDermott]

How about product placement. Mike? I mean, you having something like a Ronald MacDonald makeover for the official TOP mug-shot?

[Awake]

They had some good commentary about this on NPR today.

Basically it means that:

a) You will need to disclose if the product that you are reviewing has been provided by the manufacturer or independently purchased. It doesn't matter if you don't intend to keep it, if you asked for it or not, you need to let us know where/how you obtained it.

b) You will have to disclose if you have a relationship with the manufacturer that goes beyond what a 'normal' client would have. For example, if you get a trip to their factory, paid by them, so you can write an article, then you have a 'non-normal' relationship.

c) You have to disclose if you have 'at risk' access beyond what is provided to the regular public. Anything that could be construed as you fearing your relationship would be affected by a bad review would be considered 'at risk', such as access to pre-release versions, participation in design and review teams, etc.

d) All sponsorships, either current or known future, need to be disclosed.

e) All payments, be they in cash or in product, need to be revealed.

f) All 'working relationships' for example if you are writing a book about the product that you are reviewing, and are in communication with the manufacturer for the writing of that book, need to be revealed.

All I can say is that "It's about time!" We have far too many 'reviewers' that are basically virtual employees of the companies that they review, for both hardware and software, yet when challenged on their relationship loudly proclaim "I am independent! How dare you challenge my neutrality!"

[Cyril]

This presumably only applies to US sources though (however you define US in that context). Many well-known photo websites are not from the US and would therefore not be impacted by these requirements...

[Jon Bloom]

I'm pretty sure this applies only if the endorsement is used in an advertisement. (The FTC has no authority to regulate speech that is not commercial.) You could, for example, wax enthusiastic about a product that was given to you without revealing that it was given, but the manufacturer could not then advertise the fact of your endorsement without revealing the freebie. (IANAL, so I could be all wrong about this!)

Of course, it you actually took that tack, readers would be leaving TOP in droves!

[Robert Roaldi]

Well, that big gasp you just heard was the sound of the automotive press beginning to panic.

[Damon Schreiber]

And if your popular (let's say the most popular) camera review site is located in (let's say) Britain, then I suppose these rules don't apply. Still ... David Pogue ... heh.

[Chuck Kimmerle]

Not a huge fan of gov't intrusion, but these new requirements make sense. Too many reviewers only fess up to their freebies when caught with their hand in the cooking jar.

You've always been up front with us, Mike. You're ahead of the curve. A trendsetter. That's one of the reasons many of us keep sticking around.

[erlik]

You have to disclose if you have 'at risk' access beyond what is provided to the regular public.

This is plain silly. Of course people who write reviews often have early access--beta versions, products prior to the official release, et cetera. Apparently nobody in the FTC has ever been a reviewer.

Being in a design and review team is something different.

And the stuff about trips to the factory... I mean, it's a frigging' factory! It's only of interest to journalists and geeks. If they think a trip to a factory is such a terrific thing, I see they've never been to one. I've been to more dull, boring, strangling trips to factories than to interesting ones. And I'm both a journalist and a geek!

OTOH, I do agree that bloggers and such should have higher standards imposed on them. But the same kinds of gudielines should also be imposed on the regular media outlets.

[Ranger 9]

It's important for people to realize that none of this is new. The expectation that "endorsers" will disclose "material considerations" has been in the FTC guideline from the beginning; all that has happened now is that they've clarified that favorable comments in blogs or social media count as "endorsements" and should follow the same rules.

We've had quite a thread on the GetDPI forums about this, including some hypothetical scenarios I made up to let people try on their own attitudes about what should be disclosed and what doesn't need to be. It's here: http://forum.getdpi.com/forum/showpost.php?p=142023&postcount=20

My take as a reader is that even if blog writers are in it strictly for the swag, I READ their blogs for my own benefit. How can it possibly benefit me for them NOT to disclose anything that might count as a material consideration? I think TOP's attitude is exactly the right one.

[Mike Johnston]

"You've always been up front with us, Mike. You're ahead of the curve. A trendsetter."

No, actually I'm way behind the curve--I never caught up with the new post-1980 trend of Anything Goes, Whatever Works, Anything for a Buck. Just trying to maintain ordinary old-fashioned j-school ethics, Journalism 101. The best I can manage, anyway, considering I never went to j-school.

Mike

[Dave Kee]

I wonder what impact this will have on the "If you say anything about me I will sue you" folks? It seems like the timing of this action evokes a kind of poetic justice.

[ctein]

Dear Awake,

I think the new guidelines are absolutely great! I'm really glad to see we're getting some consumer teeth out of the new administration, modest though the advances are.

But, the guidelines don't mean quite what you think they mean:

I've read the FTC paper, and I don't know what NPR said or how you heard it, but both the spirit and letter of the FTC Guides make it abundantly clear that the intent of these guidelines is to ensure that the audience knows that the commentator received rewards or considerations from manufacturers and advertisers, IN CIRCUMSTANCES WHERE THIS WOULD NOT BE OBVIOUS (emphasis mine). In addition, those considerations must be substantial enough that it's plausible they affect what the commentator's writing.

To put it concisely, the intent of this is to prevent secretly-paid-for endorsements, either in cash or in kind.

Considerations sufficiently trivial that they don't affect what's written don't need to be disclosed. Neither do considerations that would be evident and obvious. The sole issue is one where something could appear to be independent editorial to the audience and really isn't.

For example, if I'm writing an article or book, I do not have to tell you that such and such manufacturers provided me with a copy of their software (or samples of film or paper) to test and review. This is known and obvious. I only need to provide that information when the consideration is one the readers might not expect me to get *AND* it is of such a nature or magnitude that it could be affecting what I write.

If Leica gives me an S2 or "lends" it to me on an open-ended time scale, I bloody well have to disclose. If Leica sends me a kit for a month to test, write a review about, and return, no I don't.

If Epson sends me a 10880 printer, I need to disclose that. If they send me a pack of new inkjet paper to evaluate, I don't.

In the case of an online magazine like The Online Photographer, or a review site like Dpreview or Luminous Landscape, there's nothing they need to do beyond what they're doing now. The relationships are clear to the audience and in the rare cases where there are unusual or substantial enough to fall outside normal practices, they are explicitly disclosed.

Please understand that these guidelines are not intended to convince you or any other member of the reading audience that we are honest and reputable. It is not about being Caesar's Wife. It is about ensuring that you are not deceived about the relationship we do or don't have with the suppliers. That's all. It may not meet yours or any other reader's burden of proof that we're being honest and reputable, but that is said reader's problem, not ours nor the FTC's.

~ pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
======================================
-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 
======================================

[erlik]

One thing that I skipped the first time around...

You will need to disclose if the product that you are reviewing has been provided by the manufacturer or independently purchased.

Are those people at the FTC sane? WTH does it mean "independently purchased"? Do they really expect magazines, newspapers, blogs, review sites and whatnot to buy stuff they review? Did anybody think to go through a reviewing site or blog, actually count the reviewed devices and then go to a shop to see how much that stuff costs?

A general IT/camera magazine with ten reviewed gadgets per issue can expect to shell out upwards of $2000. More if the gadgets are of the more expensive kind. Twelve issues per year and you can pay another person to do some stuff in the publication. Or two additional occasional revieweers.

The default state of reviewing is "manufacturer supplied the device." Period. Deal with it. Period. If you cannot, please supply the money to buy the devices. I would very much like to review an M9 with 50/0.95, D3x, Hasselblad HDIV and so on...

[David]

@erlik: The manufacturer can still provide the review samples, the site or magazine just has to disclose the fact.

There are sites that purchase every piece of hardware that they review. It's not impossible.

[ctein]

Dear Jon & Erlik,

There's a lot of conclusion-jumping going on that doesn't have anything to do with the facts.

The FTC is saying that if you are substantially compensated for talking up a product, it *is* an endorsement (or 'advertisement' if you prefer) AND if this is not obvious to the audience, you have to disclose it. That's pretty much the sum total of it.

They don't say what you can or can't say about the product, they just say you can't hide the relationship.

I suggest you both go read the FTC document (there's a link to it from the link Mike provided above). You don't have to read the whole thing, and it's written in simple English. Just read the first ten pages to see where the FTC is coming from and then skip to the end and read some of the examples they provide.

The guidelines are very straightforward, simple and common-sensical. Really! See for yourselves.

pax / Ctein

[erlik]

David, as I said, "manufacturer supplied the device" is the default state. Here, we even have the so-called info box where it says who supplied the gadget, although for completely different reasons.

Ctein, I was in a hurry yesterday so I overlooked the link on the right of the press release. So yes, sorry about jumping to conclusions. Of course, what you are saying is a way to disclose hidden advertising and that's all to the good.

BTW, what NPR wrote about disclosing that manufacturer supplied the test copy, as told by Awake in a), is basically what's written in Example 7 of the last section, 255.5.

But after reading and skimming through the guides (yes, they are guides, not rules) makes me again doubt... not the sanity but the gullibility of the American public.

The FTC is mainly speaking about advertisements, TV commercials mostly. There's something seriously wrong with people who need to be told that experts and "experts" in advertisements are there to deliver a positive opinion about a product or a company. The default state of appearance in commercials is "paid". If they are not paid, they are, again, there to deliver a positive opinion or, as in the example case of a golfer in the background, to make viewers think that his good results are connected to the brand of golf balls. (And he should be paid for that!)

To me, they are mostly nitpicking about the obvious.

[www.facebook.com/profile.php?id=507959226]

The way I'm reading it, this talks only about "endorsements" and not "reviews."

It does say that if a reviewer receives cash or other "in-kind" incentives - which I do not take to mean freebie equipment - that the review would be considered an endorsement instead.

But straight up reviews? I think they're covered.

On my site (golf), we cover this in a blanket review policy post available to anyone. We cover sponsors with advertising on the site as well.

[Doug]

Erik, I don't see on what grounds you believe that freebie equipment is not an "in-kind" incentive. What would in-kind incentives be, then?

See the top of page 10 of the notice, which includes this:

"[A] blogger could receive merchandise from a marketer with a request to review it… If that blogger frequently receives products from manufacturers because he or she is known to have wide readership within a particular demographic group that is the manufacturers’ target market, the blogger’s statements are likely to be deemed to be 'endorsements,'…"

One significant point of this revised guidance is to make it clear that a review might be treated as an endorsement under conditions where the reviewer receives something of value. "Might be", because it depends on a number of subjective judgments.

Pages 8-10 of the notice cover this topic fairly well, although there's no getting around the presence of a giant gray area.

[Doug]

Ctein, there certainly are limitations about what you can say if your writing is considered an endorsement. Basically, you can't say anything deceptive in an endorsement.

16 CFR 255.1 (a) Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser.

From example 5 at the bottom of page 63 of the notice:

"The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion’s ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition.… The blogger also is subject to liability for misleading or unsubstantiated representations made in the course of her endorsement."

[erlik]

Doug, what we've got here is apparently a misunderstanding.

Test copy or specimen is not a freebie. Leave the same device with the reviewer and it becomes a freebie. Cf. Mike's and Ctein's posts from a while ago.

Furthermore, you can interpret the part you quoted in a very restrictive and--allow me to be harsh again--idiotic way.

For instance, if I write about photography and review cameras on my blog, my readership consists of people who are interested in cameras (ie the manufacturers' target group). Therefore, I shouldn't write a single camera review because every single one of them would be considered an endorsement.

Then, I might be starting the same kind of blog. My first several posts are about photography in general. And then a manufacturer decides to give me a device for a test, because they think that my site could attract the kind of people they hope to interest in their cameras. I write a test and then nothing for a while because establishing contact with manufacturers can be a long process. Somebody may decide it was an endorsement or hidden advertising.

Let's be clear: manufacturers give their gadgets to be tested because they have an interest in seeing their devices mentioned around. There is no way around it. But without that interest there would be no testing. Now there are "user experience" sites on the Internets, some might say. They are no replacement for a testing procedure, even if the testing is not of the pixel-peeping and signal-level kind. Just like "citizen journalism" is not a replacement for proper journalism.

[www.facebook.com/profile.php?id=507959226]

Doug, I agree there are grey areas, and that's part of the problem. I personally believe I've addressed the letter and intent of this law with my site's policies and practices. We've disclosed how we get the equipment we review and that if we exceed this normal operating procedure, we'll note it in context on a case-by-case basis.

I think the goal of this re-clarification by the FTC is twofold. The first is to get people to disclose how they obtain their review equipment. The second - and this is more the "intent" than the "letter" of the law, I believe - is to actually stop the true bought-and-paid-for endorsements that some sites have.

After all, let's not forget that not every "review" is an "endorsement" by any stretch of the imagination. A review which explains in detail how badly something sucks, without mentioning a competing product, isn't much of an "endorsement" and it certainly isn't something for which the company who provided the "sucky" equipment would pay.

In the end, a review is not necessarily an endorsement and an endorsement is not necessarily a review.

This whole thing gets even trickier (greyer) when you get into software or other non-physical goods. Or consumables. Etc.