FTC Official: "We Are Not Going To Be Patrolling The Blogosphere

As you may have heard, twenty-first century advertisers have long been trying to persuade us to buy their products. But until very recently, they were afforded only a few media outlets in which to mount their offensive: television, radio, newspapers, magazines, movies, labels on clothing, the sides of buses and trains and taxis, the Macy's Thanksgiving Day parade, sports arenas, sponsored news segments, skywriting, milk cartons, vending machines in public schools, and the tattoos found on particularly entrepreneurial/desperate people. Obviously, consumers had achieved all sorts of critical checks and balances against the persuasion industry. But when the FTC decided to draw up some new advertising guidelines, they seemed to be overly concerned with a new and pervasive threat: bloggers.

Bloggers -- as well as social media users -- like stuff, as it turns out. And their need to communicate their likes and dislikes apparently caused the FTC some concern -- so much so that new guidelines released on October 5 "put bloggers on notice that they could incur an $11,000 fine if they receive free goods, free services, or money and write about the goods or services without conspicuously disclosing their 'material connection" to the provider.'" But today, according to the the Blog of Legal Times, the FTC is saying that bloggers have nothing to worry about, trust them!

In a conference call for reporters today, [Mary Engle, associate director for advertising practices at the FTC's Bureau of Consumer Protection] aimed to set the record straight after a flurry of news stories (not to mention blogs and tweets) about the FTC's new advertising guidelines that were, as she put it, "all wrong."

"We are not going to be patrolling the blogosphere," she said. "We are not planning on investigating individual bloggers."

Engle stressed that the guidelines are just that - guidelines. "They are not rules and regulations, and they don't have the force of law," she said. "They are guidelines intended to help advertisers comply with Section 5 of the FTC Act," which covers unfair or deceptive practices.

According to Engle, "The primary responsibility falls upon the advertiser using the blogger to market the product.... Our focus is on the advertiser, not the individual endorser." Nevertheless, she maintains that "bloggers who are paid per blog or tweet to market a product, for example, need to disclose that information." What constitutes a disclosure on Twitter, though? Is the FTC proposing a catch-all hashtag that can stand in for several hundred characters of legalese?

Of course, in practice, other media seem to be under no pressure to disclose the sponsorship deals they make. In a New York Times op-ed from a week ago, Choire Sicha highlighted one particularly comic example:

Speaking of Hollywood, I was treated recently to a screening of "The Road," a grim film adaptation of Cormac McCarthy's book. In it, a man and a boy travel the devastated, treeless blue highways of post-apocalypse America, fleeing cannibals and rapists. During their struggles, they stop not only once for a delicious, fizzy Coca-Cola, but also later for a long, empowering guzzling of that company's VitaminWater. Presuming that Coke paid for this placement -- or was it the other way around? -- where was the disclaimer? Who will prevent these man-eaters of commerce from persuading me that my personal escape from Thunderdome must not be Pepsi-fueled?

Slate's Jack Shafer's concerns, while less hilarious, were just as pointed.

Because of a pesky thing called the First Amendment, the guidelines don't apply to news organizations, which receive thousands of free books, CDs, and DVDs each day from media companies hoping for reviews. But if the guidelines don't apply to established media like the New York Review of Books, which also happens to publish reviews on the Web, why should they apply to Joe Blow's blog? Regulating bloggers via the FTC while exempting establishment reporters looks like a back-door means of licensing journalists and policing speech.

Ultimately, Engle seems aware that the FTC is simply not going to have the capacity to drop all sorts of enforcement on the blogosphere. But nothing she says speaks to the concerns of Sicha and Shafer, who both note protected classes of media who get to avoid onerous disclosure rules.

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