There's a real brouhaha percolating amongst the bloggerati about proposed changes in the Federal Trade Commission regulations about what constitutes compensated endorsement and to whom it applies.
Currently advertisers on radio and television (the public airwaves) are required to identify people who tout their product as paid endorsers. You've probably all seen the crawl on ads saying "paid spokesperson" If you watch the credits on game shows or on Oprah you'll see "products provided by Corporation XYZ."
Pretty basic, common sense stuff.
The proposed changes redefine compensation and who is required to disclose.
Why should you care about this? Because if you're an author, this will have an impact on you.
Here's why: the new regulations propose that anyone who receives compensation (not just money, but a product or a sample) be required to disclose that fact. Anyone includes bloggers, and tweeters. And if anyone posts information, or discussion, or opinion about it, they are required to disclose any connection to the product provider.
What the FTC failed to discern is that advertisers have assured access. They pay money, they get airtime. Or page time if you will in newspapers and magazines. Radio and television stations have entire departments dedicated to selling advertising time and space. Regulating them via the FTC is clearly in the public interest or every flim flam con man in the world would buy time on the evening news and claim to cure cancer with cupcakes (and broadcasting companies would let them if they paid enough, I'd wager.)
Reviews and discussions, including those in places like the New York Times are NOT advertisements. The advertiser is not assured of coverage. Every book publicity person in the universe would weep with joy if that were the case.
Companies are willing to assume a small risk (the cost of a product) for the chance or opportunity that the newspaper book reviewer will write about the book. Currently book reviewers are not required to announce how they acquired the book they are reviewing, or even any potential conflict of interest (although professional book reviewers observe a code of ethics that is MUCH more strict about this.)
There is a bright line that separates products being advertised and products being reviewed. It's pretty easy to tell which one is which.
It's not how the product was obtained or what medium is used to discuss the product. What clearly distinguishes advertised products versus reviewed products is how much assurance a company gets that there will be coverage-pay for play (sound familiar?)
No matter how or where you talk about a product, if the product provider is assured of coverage, that's advertising. That's entirely within the FTC's purview, and rightfully so.
What the FTC fails to understand here is that most bloggers and websites don't guarantee coverage at all. If they do, they should be regulated. If they don't, leave them alone.
And the best part of this is that even if every single blogger in the universe decides to become a shill for books published by my clients (just to use an example I think sounds pretty wonderful) there's still not a threat to the public good. One of the great things about the internet is that if you start acting like a paid shill, you lose your audience. Even if the products are splendid.
Now the reason the proposed FTC reg changes are important for you is that if these go into effect, there's a $1000 fine for violations. That means that if I take down that rather snotty FTC notice on the right side of my blog, and I mention a couple books here I received for free, and do so because the author asked me too, I could be asking for donations to help pay the fine.
You don't need those powerful imaginations of yours to work too hard to see what kind of chilling effect that could have on one of the most powerful weapons for visibility authors now have: word of mouth via the internet.
This is important. Follow the issue. Form an opinion (you should agree with me of course). Regulations don't have to pass Congress to have the full weight and power of a law. There are hearings though. Get heard.
I completely agree.
But I think authors should care for a more simple reason. Under the FTC guidelines, if you, as an author, send a blogger a book to review, and that blogger does not disclose that they sent the book, you, the author, could be held liable.
I quote the relevant parts of the regulation here:
I also note that the regulation makes anonymous blogs, such as the late and much venerated Miss Snark, or the current and also much venerated Moonrat, problematic: http://www.courtneymilan.com/ramblings/2009/10/07/the-case-against-mandatory-disclosure/
As a freelance writer, I write reviews of products. Most I pay for- but I will write off those expenses from my taxes.
So in a way I am getting the product for free for my paid review.
Is the FTC going to butt in and try to make me disclose all my "freebies".
It isn't right and really ticks me off.
This was very helpful, thanks for posting - the "guaranteed access" angle isn't one I've heard yet.
I actually think the spirit of the legislation is coming from the right place. Marketers are a devious, scheming bunch of folks (myself included), and have been trying to generate "manufactured authenticity" via social networking and blogging sites for years. I think the legislation is primarily aimed at businesses who try and manipulate public opinion or perception behind the scenes rather than bloggers themselves, though obviously there are wrinkles that will need to be ironed out (with enforcement, with what constitutes full disclosure, etc.).
"Any connection?" Really? So... are friendship or mutual professional respect considered "compensation" by the FTC? Because there are some writers I know who are so consistently awesome, every time they put out a new book they are "assured" of my enthusiastic support and recommendation.
I hope this is merely a case of good intentions hampered by blinders preventing the FTC from seeing the ramifications.
As you said, we all know a shill when we see one. And if we don't, perhaps any transaction made as a result of nefarious and dangerous secret collusion to convince others to purchase a product (WTF? We are talking about books here, yes?) could be considered economic stimulus. Oh. WIN!
I love your Official Publishing Industry Pawn seal. How can I get me one of those?
And on a more serious note, this is something that every writer, editor, agent, publisher—and more importantly every reader—needs to speak out about. Thanks for getting this conversation started.
Wait, I'm confused. Cupcakes don't cure cancer?
Wow! That is so crazy. I just started my blog and mention books I'm reading and enjoy, so I guess I have to think about this now?! Why aren't they spending the resources on things that actually matter?
Thanks for posting this!
I guess I'm jsut not getting it, Janet.
While I agree the FTC got ahead of itself (I was going to say, "was precipitous," but I don't know how to spell that) in promulgating these rules without understanding the blogging environment, why is it a problem for bloggers to disclose that they got a book for free?
The FTC isn't saying we can't blog about the books, are they? It is saying we just need to disclose how we acquired them if we talk about them. Right?
I'm an author and a blogger, and I talk about other authors books all the time on my blog. Because I'm not independently wealthy, they donate their books to me for giveaway contests. They don't pay me, I don't get to keep the books, and since their appearances are by invitation only, it's not like I'm getting payola for the air time when I give an honest opinion on the book or the author's career. I feature authors I like. I can say that and still accept the books as long as I say so, right?
So, if I put a notice on my blog that says, "Hey, here's an author you should know, and btw, this author donated XYZ book to my giveaway contest," why is that a bad thing? Or should I just hate the FTC ruling on principle and raise an angry fist to the sky, demanding all bloggers and authors "stick it to the man" because we don't like it when government tries to regulate the internet?
I don't mean to be obtuse, but I don't think I'm perceiving the ramifications the same way everyone else is. I just don't get what the furor is about.
Thanks for trying to enlighten me, though. I heart your blog.
TJB, the FTC's job isn't to regulate what gets said by whom. It's to protect and serve the general public. The way they do that is by regulating advertisers on the public airwaves. They fine or block advertisers who outright lie, or shade the truth too much about results.
Does it protect and serve the general public to require disclosure of how a product is acquired? No.
Does it protect and serve the general public to know a product is being touted not due to merit but because the touting was bought and paid for? Yes.
And anytime you start adding fines to the equation, I want to err on the side of caution, not "oh what can it hurt"
The fine, I believe, is $11,000.
This regulation is a violation of the First Amendment. As such, it will be in court.
Sadly, this is just the tip of the iceberg. Expect more crap like this as traditional media flounders in outdated economic models.
Not only will it waste time and money, it's stupid and hard to enforce. A rule like that, perfectly enforced, would be a good starter for a dystopia novel.
I have a personal blog (aside from this one, which I mostly just use for commenting) on which I do talk about books I've read and enjoyed (or not), and while they're not regular "reviews", I'm going to feel paranoid about mentioning whether I paid for the book myself or picked it up as an ARC at a convention or something. The spirit of the regulation might be good, but I worry about the enforcement.
Fully agree with you and love your disclaimer in the sidebar!
Where does "click through" advertising, which can be as camouflaged as a simple text link inside a review article, sit with your "guaranteed access" suggestion? The site owner (CNN or little blogger) doesn't guarantee that anyone will click through but doesn't get paid for the "page time" unless they do. Wouldn't your suggestion mean that noone would have to declare those kinds of, increasingly common, ads?
I think having regulations to deal with what we in Australia have called "cash for comment" in our radio world scandals, is more important than worrying whether some little blogger (like me) is going to get into trouble the one time they forget to say that the book they reviewed was sent to them gratis. It's going to be unenforcable on the lower levels of the blogosphere and is important to enforce where more is at stake.
I don't think you can rely on people's good sense to turn them off someone with an obvious agenda - Fox and MSNBC are proof of that.
Having strict rules about these things might even make for better/more thoughtful content, weeding out those who blog minimally only for the advertising dollar (and there are a LOT of those, despite there not being that many dollars going round.)
Thanks for posting this. I'd been seeing references to it on Twitter and I *sort of* got what it was about, but this really clears it up. I've linked to you on my LiveJournal as well as the Online Writing Workshop mailing list. Hopefully people will start paying attention.
Click here for more information on this at the FTC website.
It seems that the intent of the new legislation is to combat against false advertising in multi-level marketing (Amway, Mona Vie, Melaluca, etc.), but it uses language that is too broad. It is common for the individual distributors of MLM products to make some pretty outlandish claims on blogs, YouTube testimonials, and other web sites (this fruit juice cured my allergies! It cured my sister-in-law's cancer! It makes me sleep better at night!). The companies that make those proiducts are not liable for the actions of those distributors, and are pretty good at turning a blind eye to it as long as the products keep selling.
It's unfortunate that the regulations on that behavior spill so easily into other endorsements. "I liked this book" is not the same as "This drink cured my ailment" but the FTC doesn't want to recognize that.
BTW..Janet, I put you in the "Celebrity Endorser" category.
What worries me is having responsibility for whether bloggers disclose without having the power to make them do so. WTF?
Alternatively, what is the FTC doing about the malignant use of the internet to damage a product? This doesn't happen in publishing often but other industries engage in "grassroots" mudslinging to damage their competition. They make it look like consumers are unhappy with a product when they are not.
And TJ, regarding this specific issue what happens if an author provides review copies and gets reviewed by three or four bloggers who are unaware or non-compliant with this regulation? Said author is potentially on the hook for nearly $50,000 and has done not one thing wrong. That's a lot of money for a writer.
So no, it doesn't seem like a big deal for you, a knowledgable blogger to post how you acquired the copy. But if you don't someone else could get reamed.
Perhaps it would be useful to lobby for a "floor" - a cash value of the goods or services provided as a sample, under which bloggers would be exempt from this requirement.
Setting it at, say, $50 would eliminate the hassle factor for people reviewing a book or a mocha latte, but still require disclosure for people reviewing, say, laptops they received free from manufacturers. Or a $700 application suite. Or a lifetime supply of some MLM product.
I have a personal policy about my blog. If I mention a book, or a product, or a television show, it's because I've purchased said book or product or watched the show. No one tells me what to review, think, write, or slam, if that is the case. Of course, I am careful not to slander or libel anyone, but my personal opinion might be less than favorable. As they say, if you dislike something, you tell the world. If you like something, you tell a friend. All the world's my friend on my blog.
I'd say there's something to worry about, if it weren't complete and utter nonsense. Bloggers, and even the media, read the rules and assumed the worst.
Thankfully, Richard Cleland, assistant director, division of advertising practices at the FTC, had this to say in Fast Company yesterday:
"“That $11,000 fine is not true. Worst-case scenario, someone receives a warning, refuses to comply, followed by a serious product defect; we would institute a proceeding with a cease-and-desist order and mandate compliance with the law. To the extent that I have seen and heard, people are not objecting to the disclosure requirements but to the fear of penalty if they inadvertently make a mistake. That’s the thing I don’t think people need to be concerned about. There’s no monetary penalty, in terms of the first violation, even in the worst case. Our approach is going to be educational, particularly with bloggers. We’re focusing on the advertisers: What kind of education are you providing them, are you monitoring the bloggers and whether what they’re saying is true?”"
The entire article can be found here: http://www.fastcompany.com/blog/jennifer-vilaga/slipstream/ftc-bloggers-its-not-medium-its-message-0
Thank you for the info. I've been puzzled over why they'd bother with book review bloggers.
May I scrape you FTC Pawn badge and put it on my website, too?
This whole thing is crazy. I love the pawn logo. Whether or not people actually ever get fined, it's an insult to book bloggers everywhere to be treated like this.
Next time I write a review for the publisher that sends me oodles of books for free, I will write in smaller font than the actual review. "This novel was given to me without cost for my assessment." Done and done.
The sad thing is that this stupid regulation the FTC dreamed up won't survive the the very first 1st Amendment challenge that finds it's way into a courtroom. Once again, the FTC wasting time and tax payer money on something that wasn't a problem in the first place. You would think they would have better things to do.
Thanks, Janet. I love your compliance lingo and badge.
I sent this link out to about 900 SCBWI members in the southern CA area. Hopefully some of them will check this out as there are book review bloggers in our membership.
I do wonder about online book clubs and book reviews on a closed listserv. It's still reviewing a book, but it's not available to the general public, but it is on the internet. Oy!
I want some of those cupcakes!
You raise some chilling points that really need to be shouted through a loudspeaker. I don't have one, so
I'm posting quotes and links to this and one of your other entries related to this FTC fiascohere and here
If you'd like me to take them down, please let me know.
The point of the FTC regulation is to provide information to people, and to that extent, I as a consumer lawyer wholeheartedly agree with it.
First Amendment concerns are very much limited when regulating commercial speech, and this regulation will likely pass scrutiny in a facial test; it may in some cases be unconstitutional "as applied" but those types of things are few and far between.
In the meantime, all they're saying is "Disclose if there's something that would affect a reader's assessment of your credibility," and what's wrong with that? One point the FTC made is that some bloggers (not me) get tons and tons of free stuff and understand that the free stuff ends if they start saying negative things about that free stuff. If I'm reading what a blogger says about that free stuff, I want to take that into account so that I can think "Well, of course she liked that video game -- she gets it, and more, for free."
There's really nothing wrong with saying, as one commenter suggested, "I got this book for free from such-and-such." People do that, and more, all the time. Everytime a magazine reviews a book by one of its staff writers, they notify the readers of that. Entertainment Weekly reviews Diablo Cody's stuff and notes that she's a columnist of theirs. This is just in that same vein.
Okay, now the whole thing begins to make sense. I had seen lots of flailing and wasn't sure why everyone was in a yank.
That said, I'm glad to hear about the FTC's reasons for doing this and their plan for implementation. Thanks, Rick Daley and P. Bradley Robb, for hunting down that information.
Because assuming everyone in government or regulatory bodies is evil and/or stupid just never strikes me as believable y'know?
Ironically, the subject of this week's Windows Secrets newsletter is "Sponsored search results lead to malware". Apparently, neither Google nor Bing screens their advertisers for legitimacy so searching for software that detects and removes malware (slang for software that does bad stuff) will also have advertised links to sites that will give you bad stuff. These are clearly labeled as paid advertisements, so fall within the guidelines of the FTC.
Meanwhile, a blogger who reviews an ARC, a process that does no harm to anyone, is in deep trouble. Where are our priorities?
It looks like this is a potentially good regulation that needs some cleaning up. Book reviews aren't the best example, just the one that affects us most directly. A lot depends on the value of the products that are reviewed. If a company sends a blogger useful and valuable stuff to review, and there's a thought they may continue to do so, how likely is the blogger to rip the product?
This may be an extreme example, but if I read a car review, I want to know if the reviewer got to keep the car.
sorry, I just love the non-disclaimer.
Could I ask what is the code of conduct for professional reviewers is?
Our tax dollars at work.
I'm just starting to get brave enough to post comments on blogs and e-mail lists. I guess I'd better be careful. Heaven forbid I mention a great book that I had the good fortune to receive free.
I have a blog where I let readers know what I am reading each week in my Book-A-Week Challenge. All I want is to get people to read more books and other authors.
I do not offer a review, but I do give the blurb and buy information for the book so other readers know where to get it. It is offered as a help, not a kickback. I don't even know if anyone actually clicks the link. Do I now need to worry about a ridiculous fine of $11K? Do I now need to put "caveats" on my site when it is my site and I just want to share what I am reading?
However, being an author myself, this FTC thing gives me the willies because while my books will seldom get reviewed by a "traditional media" person, a "new media" person will. I am grateful for their feedback and their spreading the word on my story, but there is no guarantee they will ever read the book, let alone talk about it. My first book went out to several bloggers and and a good handful of them never made their way to my book in their pile.
I think Janet hit the nail on the head when she said that the FTC believes there is "guaranteed" give and take and that is far from the truth.
Not to mention that word-of-mouth is just that, whether online or in-person what is the difference? Either way I did not pay for that word of mouth.
The FTC should understand the blogger/online world and not try to save "traditional media" failures.
After giving this more thought, what bothers me is that it's so insulting to readers. It seems the FTC is trying to address the problem of when people buy a product because a celebrity endorsed it and then it doesn't work as advertised. And that people might be more skeptical about effectiveness if they know the celebrity was paid or compensated to endorse it. Okay, good point.
But how do you determine whether a book works? It's entertainment. "Effectiveness" is subjective. A book review pretty much says, "This is a book, this is what it's about, I liked/disliked it." Readers know that one person (or even several people) liking/disliking a book isn't necessarily a good indicator of whether they will. When I read a review, I'm more interested in the description of the story than I am in the reviewer's opinion. Consequently, whether the reviewer received compensation that might affect their opinion is irrelevant. If a reviewer says, "I hated this book because it had flying mice," I might buy it because flying mice are my favourite thing.
Now, if I bought a book because a reviewer described it as time-travel fantasy and when I got the book home it turned out to be a cozy mystery, I'd have a problem. Or if when I got the book it wasn't a book at all but a badminton set. That would be a problem. Maybe that kind of thing happens all the time and I just haven't heard about it?
I don't want or need the FTC to protect me from books that don't work.
BTW, are movie and television reviewers subject to this proposed regulation? Music, theatre and restaurant reviewers? It would be a shame (and by shame, I mean maybe illegal) if the FTC were regulating just one segment of the entertainment industry.
I put a small notice up earlier this week. I don't do many book reviews, but I have done them.
What? Cupcakes don't cure cancer???? Damn that salesman! Thanks for the information. All flippancy aside, this is an issue that bears paying attention to.
I got a book deal from my dream publisher via my book review blog (and yes, they sent me some of the books I reviewed free of charge). Am I now supposed to disclose that they are publishing me? Lord knows I wanted to be published by people who put out crap books, and I said all sorts of nice things about those crap books so that would happen. Really, most bloggers aren't getting paid. It's a labor of love and at times exhausting. I am not about to read a book cover to cover and praise it if it stinks. Life is too short. I'm not peddling Slap Chops here, I'm promoting art and literacy. Oh, and I do review and promote my firends too, but only if they write something great, and offer me bribes ;)
So, forgive a dumb question from over the border, but is this just a US issue?
If I live & blog in Canada (not blogging yet, but thinking about it) can I be touched by the FTC?
And if I send a US blogger a copy of my book (still dreaming!) and they don't disclose, what happens then?
Thanks for this article. My fear is that a few innocent bloggers, (aka those who are ignorant of this law, or those who just forget to add the disclaimer line one time), will be made scapegoats and have that $11 grand fine thrown at them. I wonder if a blanket disclaimer on a blogsite would do the trick--something like, "Books reviewed on this site were not paid for by the reviewer."
In the meantime, we should be seeing some job opportunities open up--"FTC blog-police wanted."
The regulations really need to be clarified and refined. Let's say that an entity (author, company, business, whatever) sends out a free product for review with no expectation of getting airtime, as it were. The recipient of that product makes fraudulent claims about it with the intention of harming said entity. Would the entity be fined? Would the recipient be fined if they essentially followed the rules and disclosed the source of the product?
Worst case scenario, I guess, but this has 'can o' worms' written all over it and it's not clear how these cases would be handled.
I know folks are mostly talking about blogs here, but what about reviews posted elsewhere, such as Amazon or Goodreads? Any number of my pubbed friends have asked me to post reviews for them (I always buy the books, rather than get them for free). Is it necessary to say that in the review?
"I know folks are mostly talking about blogs here, but what about reviews posted elsewhere, such as Amazon or Goodreads? Any number of my pubbed friends have asked me to post reviews for them (I always buy the books, rather than get them for free). Is it necessary to say that in the review?"
I'm kind of curious about this, too. It might keep people from leaving reviews on these sites.
Like they are actually going to have the time to police every single blog and see if they're "following the rules."
Like they are actually going to have the time to police every single blog and see if they're "following the rules."
So ... what? If you're a blogger and do a review of a book, do you have to pdf the receipt and post it along with your review to prove that you purchased the book?
Thanx for the information, Janet. This is all very disturbing.
I find such attempts to regulate speech very unsettling. At least I'm in Canada, and don't have to follow your American rules!
So media moguls, if you want to bribe a blogger, then bribe me. I'm caustic and affordable!
Kristin Nelson blogged about this tonight, and apparently, the fines are problematic in another way. The FTC doesn't seem to have the right/ability to levy said fines.
That said, it also appears that it would be the advertisers that would be fined, rather than the blogger. Linky below, and happy weekend!
holy crap... i hope cooler heads prevail!
our own feds want to muck with copyright regs, but i can't find a lot about it... after the fact is too late, in my book :(
The way I understand it, it was all originally proposed because of companies like wineries setting up blogs and pretending to be reviewers and reviewing their own wines. (The same stuff happens on Amazon with authors, and we all laugh at them). I don't think they are after book reviewers necessarily, but I was in the military long enough to know that in any governemnt beauracracy it only takes one superhero looking to make a name for himself to put a lot of asses on the line. Legislation like this gives them the power to. But seriously, with child porn, cyber bullying, hacking and hate crimes out there, is man power really going to be allocated to this? Unfortunately, I think the answer is yes.
Fascinating. esp. the comments with misinterpretations. As many authors and their publishers do, I send copies to reviewers. Sometimes I get reviews, sometimes not. For media outlets, disposition of the received copies is usually not a problem. For free-lance reviewers it may be because there is some actual value attached to the ARC or finished copy they receive. The law of unintended consequence it in play here. It will be interesting to see how this goes forward. Insulting to readers it may seem to be, but if the recent uproar over "death panels" in health care reform proposals is any indication, the American Public is fairly gullible.
I don't think adding a level of transparency to book review blogs is a bad thing. I don't think a lot of readers will be turned off by knowing that an ARC was sent by the publisher. If a reviewer is honest and thoughtful in his or her critique, blog readers will appreciate the review regardless of how the book was obtained.
What initially worried me was the concept that review materials had to be returned. While I'm all for finding a way to keep ARCs out of used bookstores and off eBay, I don't care if book bloggers keep them as part of their personal book collections.
**knocks on the monitor**
**picks up monitor and shakes it**
**holds monitor upside down and shakes it some more**
**slaps monitor a couple good ones**
**peers into the air slots in back**
**pushes the auto adjust button**
**turns it off and on very quickly a few times**
Is there something wrong with my computer? Where the hell is Janet?
No posts for several days. Janet's too busy to blog? Either she's ill or she's found something new and tasty for us to nibble on. My hope is the latter.
Hope your conference was productive and inspiring, M
Where is Janet? What am I supposed to do, get through the day on my own? :)
Jane Tried is a mild-mannered literary agent by day, but nightfall brings out the beast in her as she transforms into an acid-tongued anarchist blogger.
Fearlessly pouring scorn on corporate silliness everywhere, Jane inadvertently falls foul of the Federation of Traders in Cupcakes, and innocuous-sounding organisation secretly plotting to control the global trade in sickly confections.
Smarting from her vitriolic barbs, the undead minions of the FTC kidnap Jane and carry her off to their lair. As virtual cobwebs gather on her neglected web pages, Jane's secret army of blog-followers embark on a galactic quest to free Jane from the ghoulish frosting fiends.
My YA supernatural science-fiction thriller FREE THE CUPCAKES is complete at 197,465 words. Thank you for your time and consideration.
"Hey, this bathwater has a baby in it."
"So? Hurry up, we need the tub."
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