New Disclosure Law for Bloggers: $11,000 Fine

Oct 092009
 

imagesAs mentioned in a previous (and my most popular) post on accepting freebies, the Federal Trade Commission (FTC) now targets bloggers in its updated guides on endorsements and testimonials. If you write about a product or service, and don’t disclose that you got something for free, you risk a fine of $11,000.

Before you freak out, let’s review the categories that might require disclosure if you choose to write favorably about them:

1. Free products or services (also called product-in-kind) including:

  • books from publishers meant for review, even if you’re given a book at an event
  • a goodie bag you get at an event
  • kitchen equipment sent for possible review
  • prepared foods sent for review or mention
  • free service, such as Sur La Table sharpening your kitchen knives.

If you’re involved in a viral marketing program, such as General Mills MyBlogSpark program, you must say so. (If you don’t know about this kind of program, welcome to the new world of inexpensive marketing. According to an article in AdWeek, “General Mills contacted 100 mom and food bloggers in conjunction with the launch of a new blueberry acai flavor of its Yoplait Yo-Plus yogurt. It provided coupons to try the product as well as tote bags and other swag to give to readers. General Mills also sent out key product messages touting the yogurt’s health benefits…Overall, the program resulted in 5 million total impressions and over 8,000 comments with no media costs. [General Mills does not buy ads on blogs, Witt said.]“

2. Free trips or free meals at restaurants or events.

3. Nice blogging gigs for pay, such as Shauna James Ahern’s blog for the National Pork Board, Pork, Knife & Spoon. (Are there other examples? I’d love to hear about them.)

4. Independent reviews in exchange for cash. I’m sure none of you do this, where you get paid to endorse a product by writing positive comments on blogs and websites. Plenty of unethical people are willing even if you aren’t, and I hope  the FTC fines them all. Still, if you get a book for free and write a positive review on Amazon without disclosing, that could be a problem.

Now, let’s get to the wording. I suspect saying “ScharffenBerger sent me this new baking chocolate”  or “a sponsor gave me this” is not specific enough. The FTC rule says “bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” You have to say you got it for free, or that you were compensated. Conversely, if you bought the item, it seems more important than ever to say so, to cover yourself. And if you don’t have a policy on your blog about receiving free products and services, now’s a good time to write one. Of course, if you don’t review items you receive, or if you return them, these rules don’t apply.

The good news is that individual bloggers are not the target of this ruling, according to an interview with Richard Cleland of the Bureau of Consumer Protection. It’s more about going after advertisers, he says. Still, the best practice is transparency in writing, and being held accountable to your readers, who trust you. I hope this new ruling results in fewer positive reviews now that bloggers might feel less beholden, or more honesty about personal reasons for trashing or praising.

Thanks to Mary Margaret Pack, Carole Bidnick and Faith Kramer for sending me links for this post. They were free and I did use them.

So, are you ready for this new law? Do you already have a process in place? Let me know how your food blogging will or will not change.

  11 Responses to “New Disclosure Law for Bloggers: $11,000 Fine”

  1. I already mention when something was free if I write about it. Is it a gray area if you get a freebie (say a book) and don’t end up writing about it? What about press passes so you don’t pay admission to events?

    This seems overly broad, but I guess its good if it means those pay for play bloggers have to disclose their corporate connections.

    • If you don’t write about receiving free stuff, there’s nothing to disclose.

      Re attending a conference or trade show, if you endorse it in your post, you have to say you got a free pass. That’s my best guess.

  2. Thanks for the useful post. I wouldn’t be surprised that the FTC goes after a couple of high-profile bloggers now to send the message of the ruling throughout the community.

    But the books thing seems a little extreme. Print reviewers don’t note whether they received a book for free; it’s sort of expected isn’t it? Still, I guess a writer could note that they “received the galley for TK from XY publisher” …

    • Hi Kathleen, thanks for your comment. Perhaps it’s because print reviewers are paid for their work, and the book is supposedly the property of the publication rather than that of the reviewer.

      • What you’re talking about in this thread is related to what I’ve wondered about ever since I first hearing of disclosure laws for bloggers – namely, that many print publications routinely receive not only books but all sorts of products to review for free, some of which are featured in special ‘columns’ in each issue that specifically highlight new stuff.

        You know they aren’t always just taking info from a press release because often times the writer will say something about having used/tried/etc the product – yet I don’t recall ever seeing any disclosures.

        I understand the desire to create some sort of disclosure guidelines for bloggers, but some of this seems a little extreme to me.

        • Sorry, I either spaced out or somehow missed your earlier post (that you link to above) about freebies, where you specifically talk about the stuff sent to magazines you worked at (very interesting). Still, I can’t imagine all the inexpensive (not to mention edible) stuff gets sent back at most magazines, and yet it’s never mentioned that it was received for free.

          I understand your point about how the writers are compensated for their work by the magazine, but does a consumer who is reading the publication or blog really make that differentiation? I would guess that many people might be more inclined to ‘believe’ a big important magazine than a single blogger – and rush right out to buy the product while quite possibly never realizing (or even caring) that it was received for free. All they care about is that somebody they trust liked it.

          As far as #5 in your previous post – ‘Don’t always love everything’ – I understand what you’re saying, but at the same time, I never review books (or products, for that matter, but I really don’t accept many products) I don’t like on my blog. I don’t see the point of giving space and press to something that I personally don’t care for. So all of my book reviews will be positive because basically I love books and am thrilled to be able to have a way to spread the word about ones that I love.

          Okay, enough rambling. Time to go check on the sheep and donkeys (who, by the way, can’t believe they never get sent any free stuff).

  3. It is an interesting point whether you need to say “free” in flashing lights or just note that you received something for review. Books are probably the most difficult issue. When I worked in newspapers, we considered cookbooks to be press releases. If we published a recipe, we gave the cookbook credit, which is only fair to the author. That’s different from taking a financial kickback or extra copies that can be sold for mentioning a book, which I suspect is the FCC’s interest in all this.

  4. Is there an actual list somewhere of the do’s and don’ts that we can review? I didn’t go into your links so perhaps it’s there. On reviewing books, yes that seems a hard one to hold down, since as I’m experiencing, my publisher is sending out dozens to various writers/blogs/reporters–standard in the industry.
    And if it is the case, then wouldn’t the same be held to newspaper writers, etc?

    • Hi Nani, I don’t know of any list. That’s why I tried to figure out what bloggers are supposed to do.

      To you and Susan, no, the same declaration about free goods is not necessary for print writers, at least not yet. As to why, see response below from me to Kathleen.

  5. I am sooooo glad I read this before running off to the Salon du Chocolat and where I will be eating a bunch of free but miniscule bites of chocolate!
    I would love to know what blogger has $11,000 to shell out for crossing the line here? This is extreme nonsense. The bloggers who push stuff are obvious usually, though I have been sent books on occasion-for the most part I can’t write about them-they simply don’t apply.
    There are so many more important (nonblogger) issues where attention should be paid in my humble opinion.
    Ach!

  6. It is interesting that this rule only applies to bloggers. I suspect this may move to print media. I worked for a magazine for decades and we received tons of free stuff, plus invitations and trips from PR people. We always viewed them as a source for ideas for stories and a way to keep us abreast of what was happening in the food industry. This was before twitter and facebook. There was never a guarantee that publication would result as an acceptance of an invitation. On tight editorial budgets it was a way to meet chefs and food people. If stories resulted from such contact, it was on our terms and we made the story on own. Mostly it was a way to make contacts. Lots of stuff never got published simply because there wasn’t enough space or the item wasn’t worth the space. Many story ideas were self-generated and came from non-promoted sources, where we paid for the meal or book . If it was a review, the visit was paid for and the business did not know who we were. I wonder if this ruling is liking to change the way PR functions.

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