FTC Targeting Bloggers
Monday, October 19, 2009
Early last week, the Federal Trade Commission issued new regulations regulating the “swag” celebrity endorses can except in the process of talking up a particular product. While the regulations seem reasonable on the surface, its seems they may have a heavier impact on the nation’s bloggers. The Wall Street Journal has an interesting write up:
And yet even newspapers with the strictest of ethics rules accept free copies of books for review. Movie, music and theater reviewers get their tickets comped. The scribblers covering sports aren’t in the habit of paying skybox rates for their privileged perches at the stadium. While newspapers make no secret of these common practices, they don’t plaster warnings on every book review or description of a football game. But that’s exactly what the FTC is requiring of bloggers.
“I think this is absurd,” says Alejandra Ramos, who writes a foodie blog called Always Order Dessert. She also happens to be an editor for a prominent women’s fashion and lifestyle magazine and suggests that the FTC is laughably naïve when it comes to the standards and practices of her business: “Magazines are sent free products all the time.” So much so that staffers have to be encouraged to take products home just to clear out the “beauty closets.” And yet, Ms. Ramos says, when a big glossy does a feature on “seven mascaras that will make your lashes look longer, they do not appear with a disclaimer that ‘L’Oreal sent us this mascara for free.’ ” Why, she asks, should the law treat bloggers any differently?
A cynic might suggest that bloggers are being singled out because, lacking deep pockets to litigate, they are easy targets for a federal agency looking to expand government regulation of speech. Full disclosure and squeaky-clean ethics are the stuff that earn trust for any journalist, not just bloggers. But as Sam Bayard, a fellow at Harvard Law School’s Berkman Center for Internet & Society asks: “Do we need the government requiring it?” First Amendment doctrine puts a heavy burden on the state not to “chill” speech unless there is a compelling interest, a serious harm to be averted. A little faith in consumers’ common-sense capacity to spot phonies and frauds is in order. When a lousy book gets an effusive five-star rave from an anonymous Amazon poster, do we need the feds to warn us that it just might be the author’s mother typing away? ...
The FTC has been saying not to worry because it plans to bring actions against violators only in rare cases—as though the promise of selective enforcement is a balm to those worried about regulatory overreach. Who knows how widely the FTC’s regulations involving bloggers and celebrities might extend? Then again, maybe it’s not such a bad idea after all: Given the new imperative that public figures disclose the clothes they are given, the agency might want to require a disclaimer from doctors who parade about the Rose Garden in spiffy white lab coats they didn’t buy.