Product Reviews, The FTC and Bloggers

Yesterday, the Federal Trade Commission published their Final Guides Governing Endorsements, Testimonials in an article subtitled “Changes Affect Testimonial Advertisements, Bloggers, Celebrity Endorsements”.

According to the FTC web site posting;

“The notice incorporates several changes to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address endorsements by consumers, experts, organizations, and celebrities, as well as the disclosure of important connections between advertisers and endorsers.”

Furthermore it states;

“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.”

“Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect.”

And if that weren’t enough, the post goes on to clearly state;

“While the 1980 Guides did not explicitly state that endorsers as well as advertisers could be liable under the FTC Act for statements they make in an endorsement, the revised Guides reflect Commission case law and clearly state that both advertisers and endorsers may be liable for false or unsubstantiated claims made in an endorsementor for failure to disclose material connections between the advertiser and endorsers.

Under these regulations the article I posted earlier this morning could be considered a testimonial for Gitzo and my claims that the Gitzo Traveller tripod “has seen the extremes of heat, humidity, mud, sand, gravel and just plain dirt and they work as well now as the first day I bought them” could be considered “unsubstantiated” and I would be legally “liable” if one of my readers were to purchase the same tripod due to my testimonial and have a different experience with it than I had. The reader could then file suit and attempt to recover damages from me.

Here’s the “material connection” they talk about. I paid for the product, used the product and wrote about the product. I didn’t get it “free” or accept any remuneration from Gitzo, but I am a “consumer” of the product and did write a product review advocating the use of the product. How about the “unsubstantiated” part? How do I substantiate my claims that the product has seen the extremes of heat, humidity, etc. and worked just fine? Do I have to video tape my use of every product I review on this blog?

In my opinion, the effect of these revised regulations will be to stifle the frank and honest review of new products by bloggers and forum posters throughout the United States. No longer will bloggers or forum posters be able to openly discuss their “opinion” on the merits of a new product without fear of reprisal. I can envision the day in the very near future that Canon releases a new DSLR camera and no one “dares” to post a preview, review or flame about it’s features or perceived benefits for fear of being sued.

  • Will folks living in “the land of the free and the home of the brave” have to read products reviews from foreign authors only?
  • Do these revised regulations really help protect consumers and does the Government really think consumers are that gullible?
  • Are the opinions of bloggers so controversial that we require FTC regulation?
  • Is this what Freedom of Speech has come to in our country?

10 thoughts on “Product Reviews, The FTC and Bloggers

  1. Man, I keep getting that James Earl Jones thing! lol

    You’re right, it’s protected free speech, and I’m against the law.

    Having said that, though, we both know there are a lot of scams on the internet, and though we scream “buyer beware”, we would probably agree that the overall masses do need some kind of protection. I’m not sure I like how the FTC is talking about trying to do it, but I will cut them some slack on their reasoning.

    Just not all that much slack.

  2. Quote “In my opinion, the effect of these revised regulations will be to stifle the frank and honest review of new products by bloggers and forum posters throughout the United States.”

    You don’t have anything to worry about. The FTC is interested in opinion thats been formed by a gift (or the promise of more) (IMO)

    Your opinion is exactly what is good for the net, you are a paying customer and your review would be far more relevant to me than someone who received the product for free (since I would be paying for the item too)

    Keep blogging your experiences and if a product is good, endorse it! Honest held belief are whats good for the end user and I believe what the FTC is striving for.

    Regards.

    Goblin
    http://www.openbytes.wordpress.com

    • Goblin?

      Thanks for reading and for your words of encouragement. I hadn’t planned on changing my blogging style. Just letting off some steam.

      Jeff

  3. Jeff, I really think it only concerns if you’re in fact being paid by Gitzmo or some other company. Me thinks your Texas blood is being taken into overdrive for no reason. These guidelines are more directed at those bloggers that supplement their income through reviews and such (Google “mommy bloggers” and you’ll get the gist.)

    Go about your business. Use and tell us YOUR thoughts of products. Men In Black won’t be hunting you down.

    Trust me.

    • Hey Mark,

      Every once in a while it feels good to work up a full lather! Keeps the heart pumping and the blood flowing. I wonder what Scott Kelby thinks of these regulations.

      Jeff

  4. I wrote about this myself today, and I have a couple of opinions on it.

    One, it’s a stupid law, not because it might not be needed in some circumstances, but because they’ve already acknowledged that it’s pretty much unenforceable for most of us.

    Two, I read your post on the Gitzo, and it’s not the kind of thing they’re looking for. My understanding is that they’re going after those blogs where either someone is writing a review of something that doesn’t conform to reality, such as someone talking good about a debt consolidation company that’s lost its license in multiple states, or where the review is an exact copy of the same thing posted on multiple other blogs.

    The disclosure thing would be tough for them to prove in any case, but most people who get free stuff, that I know of, admit to getting it; I have, at least. I’m with you in being outraged by the FTC’s effort, but more because of its stupidity than because of what they’re hoping to do. It’s going to fail big time.

    • Mitch,

      Thanks for reading and for your comments. I make it a personal and business policy to disclose any relationships I have that might affect my opinions and the information presented to my readers. I do review products I find interesting and everything I write is my personal and professional opinion. My only relationship to Gitzo is that of a “consumer” that’s darn pleased with the performance of the product I purchased. Being a stubborn Irishman it bugs the living daylights out of me when I see the Government regulating what I’d consider as “casual speech”.

      If I were sitting in a pub sharing a pint or two with some fellow photographers and happened to mention how much I admire the design, workmanship and value of my Gitzo tripod, my speech would be protected under my First Amendment rights and would not be subject to ANY Federal regulations. If I were to mention the same fact in a photography book I had written, that too would be protected speech. So why is it, that just because it’s written on a blog is this speech considered an “endorsement” by the FTC and subject to Federal regulations? And why in the name of the Lord would I be legally “liable” for any unsubstantiated claims I’ve made about this product?

      Every so called “claim” I’ve ever made about any product I’ve reviewed is just my OPINION, not a scientific fact. I’m not Underwriters Laboratories and I don’t conduct scientific tests on the products I use. I just use them and tell it like it is! Why all of the sudden is this an issue worth Federal regulation? What is it about a blogger’s opinion that so concerns the FTC that they feel the need to issue these regulations? REALLY?

      BTW – Your picture looks just like James Earl Jones!

  5. I haven’t had a chance to read the entire notice yet, but from what I know, it only applies when the blogger has received some form of payment to make the post.

    So, unless you got paid to make the post, you shouldn’t be affected.

    But then again, I’m not a lawyer, so I can’t give legal advice. 🙂

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