August 26, 2009

Truth In Blogging

Last week I posted a not-so-hypothetical. It centered around the Federal Trade Commission's recent requirement that bloggers disclose when they've received a product for consideration. Specifically, under the proposed changes now being considered, bloggers must disclose when they receive goods or services for review or promotion when and if they post about those goods and services. And bloggers are liable for any misrepresentation about those goods and services once posted. So, by way of an example, if I receive a three-legged puppy free of charge from Puppies R Us, when I discuss or review the puppy on my site, I'm on the hook to both tell you it was given to me and I can get sued if I pass it off as having four perfectly normal puppy legs.

My gut reaction to this is to call bullshit.

I am an authority on precisely nothing other than my life and progressive rock that approximately three of you may be remotely interested in. Other than that, I am just here in the world living my life like the rest of you. What I share with you are the facts of like (in which you take the good, you take the bad) as I know them. The rest? Opinions. But oddly enough this whole blogging thing has put me in some public spotlight whereby people are for some reason interested in my opinions. So some people send me things. And when they do I have a few hard and fast rules.

1. If whatever it is - book, CD, product, three-legged puppy - isn't something that fits in with my life or my site, I won't accept it. You all don't give a damn about oil for my car. I don't give a damn about oil for my car. If my car starts, we're cool. So I'm not about to tell someone that I'll take their oil when I have no interest in it. Nor am I about to lamely write about oil because you'd fall asleep, wouldn't comment, and that would make me feel bad.

2. This must be crystal clear - if I'm sent something lame or uninteresting or in any way unfit to write about, I will not. If there's an issue with that, what ever it is shouldn't be sent my way.

3. My opinions are mine. Honest ones will always be dispensed. There will be no drafts for review, no marketing-speak boiler-plate language included, no verbatim descriptions of three-legged puppies developed by marketing gurus and focus groups. Just my opinions, good, bad or indifferent.

4. I will disclose to my readers that I have received whatever product it is free of charge for the purposes of review.

I have these rules because I believe them to be common sense. Common sense should not in any way be legislated. Were I a blogger representing some authority other than my own - a marketing company, a newspaper, a law office - well, then, I'd expect to be somehow regulated. But I refuse to believe it's a good idea or even at all possible to hold your average everyday John Q. Blogger to regulatory truth-in-advertising practices. If I tell you that the three-legged puppy has four legs and can drive a car, knowing that neither of these things is true, maybe I can understand it. But telling you that I like the dog in the absence of full disclosure - whether or not it's true - shouldn't be the subject of a law or statute.

While I respect the end-game - to protect the consumer and encourage full disclosure - I don't want that infringing on my right to express myself and my opinions. It should not impact my writing - either the content or style - and I'm damn well not going to preface everything I say with an exhaustive accounting of why I'm saying it or the factors that could potentially influence my decision. Because that's stupid.

Here's the bottom line, what I think really bothers me most. This site is one of the few outlets I have to express myself exactly how I want. Though possibly well-intentioned, the idea of someone encroaching on that freedom really pisses me off.

So that's where I'm coming from. I know many of you shared your opinions on Friday but I want to hear more. Do you think the FTC guidelines are fair? Would you follow them? Do they infringe on free speech?

Posted by Chris at August 26, 2009 7:08 AM

i smell big brother... they just want to see if you fall for a "scam" and send them money.... cuz i would certainly look at it as it must be some horrible joke!!! next they will break into everyones house, collect anything that looks like a diary or journal... and if you said you "tried" anything and formed an opinion... they will ask why you didn't report it.... or better yet... even arrest someone if they think a minor went to far in 9th grade with their "steady"

Posted by: theunicorn at August 26, 2009 7:20 AM

I believe that YOU would be totally honest. But, I think some people's attitudes and opinions would change if they are getting paid or compensated in some form or fashion ($$ or free product). I believe that is where this type of legislation is coming from. You do the right thing because it's the right thing to do - others don't always live by that rule.

Posted by: Debbie at August 26, 2009 7:34 AM

It's ridiculous. I am in the process of really overhauling a lot of my skincare products, hair care etc. to a much more chemical free product due to how I feel it effects our overall health. So in this process I will put reviews of products I personally buy myself and try out and have done a ton of research on. So what your saying is that if someone reads my review of a product buys it and develops a rash I'm to blame? I call bullshit on that due to the fact that there are tons of sites out there that offer reviews such as e-oponion and cnet. WTF?

Posted by: Dee at August 26, 2009 7:43 AM

I agree with Debbie. Unfortunately, those of us who have and use common sense every day forget that we are the minority.

I read several "healthy eating" blogs, and it is blatantly clear when free samples are sent out. All of the sudden 5 blogs from 5 different parts of the country are waxing poetic about the marvelous new yogurt (which happens to cost $3 per cup)... but only one or two of the 5 will mention that it was a free sample. And don't get me started about the ones who constantly have giveaways of said product for the sole purpose of driving up comments/traffic to then increase ad revenue.

I have no problem with receiving/reviewing freebies but don't forget to mention that they're freebies.

A commenter on one of the sites I read suggested that the blogger answer the following question when reviewing an item: Would you pay full price for it?

Oh, and the legislation... well, I think it's more to protect the sheeple from themselves. I mean, I know of quite a few blogs who don't have readers, they have worshipers... worshipers who literally take everything the blogger says as Holy Gospel From On High. But should we legislate that?

I dunno.

Posted by: leslie at August 26, 2009 7:50 AM

Well, if taken completely literally...

I receive free laughs from you and Mrs. Cactus all the time. I recently linked to you guys on my blog. Telling people if they want honest, funny and real posts - go read The Cactus & The Fish.

Does this mean that because I didn't specify that you play guitar or Beth is a mother - that I am busted?

I'm just sayin'. This could get WAY out of hand.

Posted by: Holly Reynolds at August 26, 2009 8:33 AM

What I don't get is this - how is this any different from getting a free sample of something at the store and then telling your friends what you liked/disliked about it. You might even put it in writing in the form of an e-mail or letter, so how is that any different from blogging about it, especially when you don't run ads on your site?

Posted by: Karen at August 26, 2009 8:35 AM

Your comment "Common sense should not in any way be legislated," brings to mind one of the few things that my dad used to say that I agree with: The government cannot, and should not try to, legislate morals or common sense. Unfortunately, the government does so every day.

Let me see if I understand this. If you talk about the 3-legged puppy but fail to tell us that it is a 3-legged puppy you can get sued? Not just if you try to sell me the 3-legged puppy? Cause if you sold me the 3-legged puppy without telling me it only had 3 legs, that would be fraud, right? But if you just talk about said puppy without mentioning its leg shortage, what have you done wrong? I don't get it. And if I run out and buy a puppy from Puppies R Us just because you talked about it, then you get in trouble even though I'm the one who was an idiot? Give me a break...

Posted by: Elizabeth at August 26, 2009 8:39 AM

Censoring YOU would be a horrible idea. Some of those other bloggers, though....

I kid. It's a slippery slope, and readers have to take some responsibility for how much faith they put in a stranger's words, and on what they base that faith.

Posted by: Julie at August 26, 2009 8:43 AM

I understand where the FTC is coming from, but as with most government offices, they screwed this up.

This is going to end up just like the stripper tax, I tell you.

Posted by: William at August 26, 2009 9:02 AM

I believe if you receive freebies and write about it, you should disclose your source. However, I don't believe you should be liable for "misrepresentation" about the goods. I mean, you don't work for the company and your opinion is, well, YOURS. How could I be liable if I think the product sucks when you disagree? Stupid.

I am a brand evangelist for CA/AZ/NV markets called Fresh & Easy. I do get invites to their blogger events and only once did I get products sent to me to try. If I have to be liable for my opinions of their products and services, I'd quit writing.

I move to the US for free speech, and have blogs to voice my thoughts. This regulation is not what I signed up for.

Posted by: oakley at August 26, 2009 9:08 AM

First off, before even getting into it, let me say to you and everyone reading that this is the perfect example of how blogging and the web are helping to re-invigorate the idea of community debate about legislation. Here we are, all hundreds if not thousands of miles away, having a real discussion about politics, as if we were in the same town. Just goes to show, nature finds a way.

Second, there are a couple of facts that need to get on the table:
1. I urge you to read the proposed legislation:
2. What the FTC is proposing is in a state of request for public comments, so anyone that feels strongly about this can submit comments ( see the pdf for instructions; can be done via email ).

Third, using your 3 legged puppy example, the wording from the FTC's PDF is:
"The Guides state that endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. 16 C.F.R. § 255.1(a). Furthermore, endorsements may not contain any
representations that would be deceptive, or could not be substantiated, if made directly by the

So using the puppy example, if you blogged that you got a free 3 legged puppy from Puppy R Us, and it was great even though it fell over sometimes, you are meeting the letter of the law. IF you blogged that Puppy R Us is a great store because when you buy a 3 legged puppy when you get home the 4th leg grows right in, so you are getting four legs for the price of three, then you are violating law.

I think that specific details of the amendment are bringing the law up to speed with the craftiness of modern advertising. For example, in section 255.3, which deals with Expert Endorsements, section a states:
(a) Whenever an advertisement represents, directly or by implication, that the endorser is an expert with respect to the endorsement message, then the endorser’s qualifications must in fact give the endorser the expertise that he or she is represented as possessing with respect to the endorsement."
This example is given of something that would not be allowed:
"Example 1: An endorsement of a particular automobile by one described as an
“engineer” implies that the endorser’s professional training and experience are such that
he is well acquainted with the design and performance of automobiles. If the endorser’s
field is, for example, chemical engineering, the endorsement would be deceptive."

In my opinion, this goes beyond "legislating common sense" and is designed to put constraints on advertisiers so that they cannot make fraudulent claims via a third party ( in your case, bloggers ) and then cry "It wasn't me, he said it".

But that's my opinion; go read the proposed legislation for yourself and let me know what you think. As I've said before, this is particular to you because you do have a blog, and I don't so I'm curious to see how it looks through your eyes.



Posted by: metawizard at August 26, 2009 9:30 AM

I understand what you're saying, but I don't agree. The FTC isn't limiting what you can say; this is really just a "truth in advertising" law. I know that a blog isn't traditional advertising, but if you accept a product and agree to write about it (which you're free not to do) then to some extent you are "representing some authority other than you're own." You've entered into an agreement with the product's promoter. You're also responsible to anyone who relies on the facts (not the opinions) that you give them. The bottom line of the law has nothing to do with whether or not you can express your opinion; it's just that you have to be honest with the facts. Unfortunately, not everyone is honest, and when another person relies on that dishonesty, well, then "there ought to be a law..." When it comes to your opinions, you're still free to write whatever you want and the law doesn't care. Nobody can sue you for saying that you loved or hated the three-legged puppy.

I'm no expert either, but I think that some of this legal protection probably already existed at a state level and maybe even federal; this law just puts it in writing.

Posted by: Darren at August 26, 2009 9:52 AM

I have never been one to be told what to do, go figure. I am not a big fan of the government stepping into places where they do not belong, which they have done ever since I can remember. I am a fan of truth in advertising. I, like you, disclose when I have received something for free in order to review it. I am rather selective in what I accept, hence the reason that most have gotten favorable reviews. I have been honest, which by the way led to me not reviewing for at least one author anymore.

So to answer your questions. No, I don't think they are entirely fair. I feel that they overstep their bounds a bit. Will I follow them, I am not sure, is there jail time involved? Do they infringe on free speech, as currently proposed, it sure feels like it.

Posted by: Jeff A at August 26, 2009 10:11 AM

Are there any links to articles on this? Who do I email and yell at? This makes me feel uncomfortable.

I am done.

Posted by: Katrink at August 26, 2009 10:28 AM

I can't wait to read the link that metawizard provided, but as I stated before I believe this legislation was written mainly for the experts and journalists and not so much for the personal blogger...I hope that's what the link states.

If it is a personal blog, I do not agree with the legislation. I do believe it infringes on the right of free speech; however, if it is a professional blog or someone who makes a living on their opinions or knows others buy based on their opinions (i.e. Oprah, Rachel Ray, etc.) then I do agree with the legislation.

Posted by: Krush at August 26, 2009 10:37 AM

This is a pretty hot topic among us book bloggers. Personally, I don't currently disclose where I received the book I'm reviewing, because it really doesn't matter to my opinion. But, I guess I'm going to start doing that.

I'm really not worried about the misrepresentation part. My opinion is mine, and I provide the ability for people to comment if they disagree.

Posted by: Jaime at August 26, 2009 10:58 AM

Since no one ever gives me free anything, I am thinking that the FTC can butt out of my blog business. I give my "opinion" on stuff and that's it.

Posted by: Maribeth at August 26, 2009 11:39 AM

i'm still with metawizard and everything i've already said on the subject.

but now my head hurts.

ps. i think three-legged puppies are really sweet.

Posted by: kati at August 26, 2009 11:49 AM

Sadly, the majority of the American public are like sheep - they follow. They follow people they look up to, even bloggers. So, should it be put on your shoulders to protect them? Interesting question.
How long should you hold a child's hand and protect them before it becomes detrimental to their personal growth?
You protect and teach your children, the older they get, the more choices they make AND are held accountable for. If Mia is 20 or 30 and you are still holding her hand, making her decisions for her, have you done your job as a parent properly? I don't think so. Wouldn't it be in her best interest to have taught her to do her own research, make her own decisions and be held accountable for them?
It's pretty clear when a blogger has received a freebie. If they HAVE to tell you that, well I think that is as far as it should go if it even has to go there. To hold the blogger accountable for the sheep-reader deciding said product is right for them, that is ridiculous and not benefiting anyone. This old saying comes to mind:
"Give a man a fish, you feed him for a day, TEACH a man to fish and you feed him for life"
it's time the sheep learn to take care of themselves!

Posted by: LaineyDid at August 26, 2009 11:54 AM

I don't like the big brotherish side of things, but since my philosophy is pretty much the same as yours on it, I just do it. Example - the Disclaimer on yesterday's blog post read:

These are all products and services that I have bought on my own (unless otherwise stated). These are things I love for their awesomeness and for their usefulness, and blah blah blah. No one is paying me to say nice things about these products. I don’t believe in kissing butt anyway, so, there’s that.

As a rule, I feel I'm pretty transparent as a blogger - so I have no problem saying, "Hey, this was a freebie."

That it's NECESSARY to do so bothers me. There are many people who will write whatever is necessary to just get more free stuff.

Don't get me wrong, i'm not knocking free stuff. I post about things I love all the time - and if any of those people wanted to send me product, I'd love it - but I wouldn't start singing the praises of some shit product to get in someone's good graces. I've never been too good at kissing ass.

Posted by: sarah at August 26, 2009 12:23 PM

The only reason that I can think of that you should say you got something free is this:
Since it was free you obviously didn't shop around for it or really compare it to another item.
For instance, when I bought a wireless headset for my motorcycle, I researched the hell out of and then made a choice. If I got a free headset I probably would have taken it, used it, and liked it because I didn't know what else out there I was missing. Other than that, why should we care if you paid for an item or not?

Posted by: Rose Winters at August 26, 2009 12:34 PM

As much as I love my country (but fear my government), I have to say I see their logic. Without that check in there, companies could create (literally) thousands of fake blogs, all talking about their products. For a fraction of the cost of traditional media advertising, they could pay (through money or goods) thousands of people to run blogs that promote their stuff, and thus flood the internet search engines with totally biased reviews and information. And consumers would be non-the-wiser that those blogs were, in fact, paid advertisements.

But to be honest, I highly doubt the FTC is going to come after me if I post a review of Scharffen Berger's dark chocolate after they shipped me a case of the stuff (in my dreams).

Posted by: Jon (was) in Michigan at August 26, 2009 12:57 PM

Hm, I dunno. Based on what metawizard said, it doesn't seem as bad as all that? I do agree with saying when you've got something for free...but like so many things, this is a little over my head :P

Posted by: Heather at August 26, 2009 1:40 PM

Amen to that! We (the world) need less laws, more common sense.

Posted by: Nadine at August 26, 2009 2:56 PM

I think the root of the problem is that there is very frequently a fine and blurry line between "personal" blogs and "corporate" blogs. Sure, some blogs are obviously one or the other, but some can fall into a gray area. Corporate-sponsored but personal writing (i.e., the soon-to-be-dead blogs)? Personal blogs that have huge readership but manage to take in some ad money (like yours, actually).

I agree that it makes sense to regulate blogs that are fully "corporate" (sponsored by a company, there to promote said company), but the way the blogosphere has evolved has made it very difficult to draw a line around who should be regulated and who shouldn't be. So in typical governmental fashion, they're just going to try to regulate everyone rather than figure it out.

I think it's lame, I think it shows just how little the government gets in re: technology and social media, but I can also totally understand their logic behind it.

Posted by: Dawn at August 26, 2009 3:59 PM

I guess I don't really have a problem with the legislation because I think a lot of the bloggers that are doing a majority of the reviews are making a business out of it, and so I don't have an issue with regulating that.

Some of the personal blogs that I read, particularly the ones that are popular, are kind enough to set up a separate blog where they put their reviews, which is much more palatable to me. I don't mind reading the occasional product review (I've done a couple myself) but if I'm reading a personal blog, I prefer that it be *personal*.

Posted by: Becky at August 26, 2009 9:17 PM

It seems to me that in the past most politicians are lawyers or come from backgrounds in Law. What better way to keep the firm going than writing more laws?

Posted by: scott at August 27, 2009 1:10 AM