To Blog Or Not To Blog (about product), That Is The Fine . . .

There’s been a lot of fuss over the recent changes to the Federal Trade Commission rules regarding product endorsement and so on. And I fussed right along with everyone. But now, they’ve put out a “what we REALLY meant to say” version, which clears up all the problems I saw — so now I support it wholeheartedly. Let me go over just a couple of the major points; unfortunately, that means my newly minted resolve about short blog posts is temporarily suspended. There’s just no way to dissect this sucker without going on a bit. But I’ll be as brief as I can. . . .

(Quotes drawn from Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising)

The FTC is trying to bring its rules up to the year 2010. Laudable. It asked the community at large for feedback. Even more laudable (and intelligent). The comments it received came from . . . oh, over two dozen associations, agencies, and councils, plus a blizzard of feedback from the community-at-large, all listed in a lengthy footnote. So they definitely got what they asked for and then some on that point. Nobody can say they didn’t hear the voice of The People on this one.

[Quote]II. Review Of Comments: Nearly all the comments received . . . took issue with, or raised questions about, one or more of the changes . . . Several argued that there was no need for the Guides to be revised at all, and that the 1980 Guides, combined with continued industry self-regulation and the Commission’s case-by-case law enforcement, would adequately balance the needs of advertisers and the interest of consumer protection. . . . others argued that the evidence in the record did not support the proposed changes, that the proposed revisions . . . could have a negative affect on emerging media channels . . . [end quote] (lots of blah blah blah after that point, though, just so you know.)

Translation: Lots of people with interest in seeing things stay just as they are made a lot of noise. I’m particularly amused at the ‘industry self-regulation’ claim; oh, yeah, that’s working out just dandy, ain’t it? Riiiiight. I understand those pills you’re holding up will help me lose 50 pounds in just one week! Really! Celebrity #1 says so! And I can get a Gucci handbag for FREE if I write a COMPLETELY unbiased customer testimonial for their web site! Yeah . . . self regulation seems to be doing a great job.

And . . . there’s no need to update regulations last revised in 1980? The word “disingenuous” comes to mind. Blogs weren’t even a glimmer of an idea in 1980. Doctors weren’t being swamped with pharmaceutical reps every day, the TV Guide Channel Station was just a channel listing without any movie previews or highlights from popular events (actually, I’m not even sure it existed back then — does anyone know?), grocery stores hadn’t yet started putting ads on the floor, product placement in TV shows and movies was in its infancy (again, if it even existed — anyone?). And let’s not even talk about all the ‘reality TV’  offshoots . . . we’ve had a LOT of changes in advertising since the 80s. Which means the rules have gotta change to keep up.

Bloggers have stepped into the middle of this. A good blogger IS a celebrity these days. I’m excited, for example, that I have a guest post and the first chapter of my novel up on Grasping For The Wind, because that’s a blog with a heavy following and has earned respect; a good review in Green Man Review really means something, as opposed to Zippy Nitwit with his three-reader blog posting that he liked his cousin’s book.

So if a writer or a product company seeks out blog, online journal, or web site to review their latest offering, those reviewers ought to be aware and cautious about protecting their integrity; and the good ones are. The bloggers/reviewers targeted by this change in rules are not the responsible folks like Green Man Review – it’s the folks (often but not always indie bloggers) who literally solicit thousands of dollars of merchandise for their sites, write a review, then sell the merchandise and keep the cash. That’s where one head of this hydra starts drooling nasty fluids.

I know of multiple book reviewers — and many small bookstores — who are unapologetic about listing, on Ebay, the Advance Review Copies they are sent. Most indie bookstores have an “ARC table” for shoppers to pick from, and charge minimal fees of a dollar or two a book. That adds up to a tidy pile very quickly, if one is reviewing/receiving several items a day! Ethical? Not in my book, unless the reviewer then sends the author at least fifty percent of the sale price. At the very least, it’s tacky as hell, like selling your wedding gifts on eBay the day after the honeymoon.

If something was given to a reviewer for free as a review item, selling it taints that review no matter what was said about the item in question. (I’m not talking about the indie bookstores ARC table here, because I get that they literally have stacks and boxes of — and this is important — UNSOLICITED Advance Copies at the end of an average week, and what the hell else can you do with them? And also, they’re not usually writing reviews or endorsing the books, they’re just dumping them on a sale table. Entirely different story.) Is selling ARCs illegal? No. And I’m not really seeing that change under the new rules (if someone better at wading through legaleeze sees a different interpretation, please feel free to argue the point). What I do see is that if a reviewer sells their freebie review products heavily enough to make real money, and IF they get caught, they’ll get tagged with a stiff fine.

Another aspect of these rules (another hydra head begins drooling) cover celebrity endorsements. If Cheer or Dr. Direw or the celebrity-flavor-of-the-month goes on record as saying an item is as a miracle cure-all (for example: this pill will allow you to lose 50 pounds safely in one week; this cream will completely erase eczema forever; etc), they have a responsibility to be careful how such claims are phrased. The rules are now catching up with that concept and putting some restrictions on the more absurd claims. If Dr. Direw has never had eczema and didn’t use the product on himself, how the hell can he claim it was a miracle cure?  And if Dr. Direw is, additionally, perhaps not getting paid directly but instead gets five thousand cases of eczema cream which he them turns around and sells for fifty thousand dollars . . . that is not an unbiased review. Nor an ethical one. And that is what the FTC is trying to stop, and what I am 100% behind.

“Oh, but,” some folks apparently protested, “nobody believes what those silly ad campaigns claim anyway, so you shouldn’t stop us from making these claims because it’ll hurt our sales and make it too burdensome and expensive for us to prove our claims are true.” (No kidding. I read that section several times to make sure I was understanding that complaint properly. It’s mangled in legaleeze, but that’s what it says, sure ’nuff.)

. . . . please don’t make me say my first, second, or third thoughts on that involute reasoning. . . I’m trying to keep the swearing to a minimum here.

Let’s look at one last hydra head tonight, and then I’ll quit:

Advertisers are afraid that they will be held liable for any claims a blogger might make about the product in questio. Here’s what the FTC paper says:

[Quote]“New Example 5 should not be read to suggest that an advertiser is liable for any statement about its product made by any blogger, regardless of whether there is any relationship between the two. However, when the advertiser hires a blog advertising agency for the purpose of promoting its products . . . the Commission believes it is reasonable to hold the advertiser responsible for communicating approved claims to the service (which, in turn,, would be responsible for communicating those claims to the blogger).” [End quote] (Italics mine)

In other words, going back to my eczema cream example (which is very close to the one in the FTC paper, but I attached names), if Bob Blogger works for the Annoying Advertising Company, getting paid to write reviews of product given to him by his bosses — and Greazy Creem Co. sends samples of their new eczema cream to AAC, who sends it to BB to review (still with me? Good) — who then claims that the eczema cream made his eczema disappear overnight, it is more than reasonable for AAC to make sure before publishing that review that BB actually had eczema in the first place! And if BB is blemish-free and always has been, and AAC publishes his review as it stands, then they’re all going to get hammered for false and misleading product reviews. So the Greazy Creem Co. has a direct responsibility, on dispensing its product, to specify that AAC must give that test product to a qualified reviewer: i.e., one who actually has eczema. Not such a hard concept, is it? Makes perfect sense to me . . . .

All right. That’s more than enough for one post; hopefully I’ll start a good discussion with this one! I’d love to talk more about this issue, which has raised such a fuss and has been so widely misunderstood. All you good bloggers and reviewers, sleep sound and safe tonight; the Big Bad FTC is not coming after you!