FTC Attorney Says Guidelines Not Aimed at Individual Bloggers
By Sue Corbett -- Publishers Weekly, 10/19/2009 2:17:00 PM
The Federal Trade Commission, which set the blogging world aflame two weeks ago with new guidelines governing truth-in-cyberspace advertising, “never intended to patrol the blogosphere,” said Mary Engle, an FTC lawyer who addressed KidlitCon 09, a conference of kids’ book bloggers held last weekend in Alexandria, Va. “We couldn’t do it if we wanted to and we don’t want to.”
Engle, the FTC’s associate director for advertising practices, spoke to the gathering of 70 bloggers at the invitation of conference organizer Pam Coughlan, who blogs as Mother Reader. “Everybody who talked to me after she spoke said they felt so much better and that they understood the issues much better,” Coughlan said.
The guidelines set off a firestorm in the blogosphere when an Associated Press story stated that, beginning December 1, the FTC would “require bloggers to clearly disclose any freebies or payments they get from companies for reviewing their products,” including books, or face fines of up to $11,000.
Not so, Engle said. “These are guidelines which don’t have the force of law. They are intended to put meat on the bones of the ‘endorsement and testimonial’ guidelines first issued in 1980, but they are distinct from the FTC’s rules and regulations, which carry civil penalties if violated.”
Moreover, Engle said the revised guidelines are aimed at advertisers and marketers, not individual bloggers. She cited a Procter & Gamble campaign called “Vocalpoint,” which provided “400,000 moms” with free products in exchange for endorsements made via blog posts and tweets.
“If these moms are posting about how great Tide is or Febreeze, that wasn’t just because they tried it and they loved it; it’s because they are part of P&G’s marketing campaign and that relationship needs to be disclosed,” said Engle, who also admitted, “We probably could have done a better job of describing the distinctions between people who write blogs about books and the moms who are part of P&G’s team.”
Coughlan said the furor over the revised guidelines was fanned by an interview with Richard Cleland, of the FTC's Bureau of Consumer Protection, posted on the Reluctant Habits blog, in which the Consumer Protection chief made no distinction between product endorsers and arts reviewers, and in which he suggested that any item received by a blogger qualified as compensation unless it was returned after the review was written.
“The word ‘compensation’ threw everybody into a panic,” Coughlan said. “Immediately people jumped from compensation to income to taxable income to the IRS. There’s a big difference between being paid money for posts, or being paid in product for posts, and us having to declare the value of books we receive, many of which are not solicited.”
Either clarifying or backpedaling from Cleland’s statements, Engle said Saturday someone with a “personal blog, writing a genuine or organic review,” did not need to disclose how they got the book or assign it a value. “We have nothing to do with the IRS. I have no idea if you are supposed to declare that as compensation. We were just looking for a word that wasn’t ‘paid,’ because there are ways of being compensated for posts or tweets that don’t involve actual pay.”
She was less sure about whether the earnings derived from links to indiebound.com or amazon.com needed better labeling.
“I think that’s harder, and we don’t have a hard and fast position on that yet,” said Engle, who wondered out loud if it was as clear-cut as a doctor who gets profits from the sale of medicine made by a company he has a financial stake in. “Is an Amazon affiliate program similar to that? Or does a reasonable consumer clearly understand that the blogger gets a cut from every sale? The examples that are at the black-and-white ends are easy but in the middle there’s a lot of stuff we’re not sure about yet.”
Some bloggers are not waiting for a definitive answer. Elizabeth Burns, who blogs as A Chair, a Fireplace and a Tea Cozy, added this line to her blog posts last week: “Amazon Affiliate. If you click from here to Amazon and buy something, I receive a percentage of the purchase price.”
“There’s a lot of integrity in this community to begin with,” Coughlan said. “We want to know how to do things correctly and with transparency.”
