FTC's New Blog Controls

As indicated by the badge to the left, I am a member of Wellsphere's Blogging community. This morning, I received a note from Wellsphere, which I assume went out to all their bloggers, concerning some new guidelines put out by the FTC:

“We are writing to let you know about revised Guidelines issued by the Federal Trade Commission (FTC) on October 5, 2009 relating to endorsement and testimonial advertising. These new Guidelines go into effect on December 1, and reflect the FTC’s interpretation with respect to federal law relating to advertising. These new Guidelines specifically apply to bloggers and could impose liability on bloggers for endorsements or testimonials.

The revised Guidelines state that:

· The Guidelines apply to Bloggers and online word-of-mouth marketers and require them to disclose any material connection to a company when reviewing the company’s products or services (failure to disclose any payment or receipt of free product from an advertiser or someone acting on their behalf could expose you to liability);

· Both advertisers and endorsers can be liable for false or unsubstantiated claims made in an endorsement (if you were given a product for free or were paid to write a review, then the claims you make about the product must be accurate and substantiated);

· Advertisements containing consumer endorsements, or testimonials, must disclose what results a reasonable consumer could expect from the product and can no longer rely on a disclaimer that “results may vary”;

The full text of the new guidelines can be found here, and some further explanation from the FTC is found here. The salient points are:

The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.

I have mixed feelings about this, like most things in life these days. I do believe the public needs to be protected from false advertising, which seems to be the main thrust of this program. However, this becomes rather intrusive on the individual, the blogger in this case, and in theory at least might infringe upon one's First Amendment rights. For example, I might want to say something like, "I love the New Nabisco PACS!" (I could have said I like the Nabisco product the late George Carlin mentioned with those Seven Words, but this is a family blog...) Here I am, with a disclaimer in my profile telling you that what I publish is my opinion, and nothing more. Well, that isn't good enough. Americans apparently aren't considered savvy enough to question the sources of their information, and must have legal protection against a rogue blogger like myself who might have received a shipment of Nabisco cookies to give a positive review of their PACS (which of course doesn't exist). What if Nabisco had rewarded me with cookies after I blogged about their fictional product? What if I'm lying about it completely? Doesn't the reader of a blog have some small duty to ask these questions? Do I have the First Amendment right to post anything I please, even if it's false?

It would be nice if the FTC (and the FCC) would have a look into the motivations of the mainstream media outlets, all of them, even Fox, in the same spirit of protecting the public from misinformation, but I suppose that's asking too much. I guess they have to start small, with measly little blogs. On second thought, the news outlets are supposed to be doing that to the government, not the other way around. And only Fox comes close to even trying.

To comply with the ruling, I now have to come clean. I am currently paid nothing by Amicas, or any other vendor. I have been flown to Boston and to Tucson for meetings of the (unpaid) Amicas medical advisory board. I recently traveled to Australia at the expense of healthinc, a redistributor of Amicas down there, and received a boomerang as an honorarium for giving a talk to some of their customers. It was a very nice boomerang, by the way. Visits to Koala Park and boat rides around Sydney harbor were paid for by me and not healthinc.

I have been taken to Israel and Germany several years ago by Elscint, just as they were being purchased by GE. I've had a few other equipment junkets, but no cash changed hands.

The only payment I have accepted was an honorarium from Daxor for giving a speech at a regional meeting discussing their BVA-100 blood volume system, which I had been using for several years before being approached to give the talk. Frankly, I didn't do a great job on the talk, as I tried to cram a huge amount of information into a small amount of time, and Daxor hasn't asked me to speak since!

The material I publish, aside from quotes, of course, is mine alone. It is my opinion, and it is not paid for. I do have my price, but probably only GE could afford me.

And that's the way it is. Have fun with that, FTC.