Monday, November 30, 2009

Editorial: FTC blogger review honesty regulations are disingenuous at best!

Review graphicI remember the big “Payola” scandals in the record industry of the 60’s. You may have lived through them yourself, or read about them in school. Record companies gave “promotional” payments to radio disc jockeys to play specific songs and give them ample air time in order to popularize them.

Alan Freed, the number one New York City disc jockey and early supporter of rock and roll, had his career shattered by a payola scandal.

It seems as though the Federal Trade Commission (FTC) is concerned about possible blogger payola from manufacturers, distributors and service providers in exchange for positive online reviews of their products. They’ve attempted to codify a new set of rules to prevent this potential problem; FTC 16 CFR Part 255, Guides Concerning the Use of Endorsements and Testimonials in Advertising.

There are so many problems with the new regulations, I hardly no where to begin, so I’ll start with what I do in my Blog, and in my other reviews, published on the Internet or in print.

I disclose any financial and/or commercial relationship between me and the company(s) producing or selling the products or services I review. I abhor “stealth marketing.” It’s inappropriate, unfair, and unethical journalism.

Generally manufacturers or distributors lend me products to test and review. Once reviewed, I return all loaned products. If it’s a service being reviewed, there is nothing to return, however, once testing of the service is complete, I discontinue it. If I like the product or service enough, I sometimes purchase it at typical street or retail pricing.

While I have received some trinkets like key rings, tee-shirts, luggage tags, and low capacity memory sticks, I accept nothing of value from companies who manufacture or distribute products or services I review. Yes, I even purchased that Nikon baseball cap I’ve been wearing this year.

I’ve reviewed all 81 pages of the regulations published by the FTC in the Federal Registrar. I see two major problems with these regulations.

First, the FTC has differentiated between reviews of “traditional” media, such as magazines, newspapers, television and radio, even when published to the Internet, versus reviews offered by “non-traditional” outlets such as blogs (I can find no actual definition of what the FTC considers a “blog” in the new regulations.) infomercials, celebrity or professional endorsements and such.

The problem is the difference between reviews in “traditional” media and blogs is wholly an invention of the FTC. The difference doesn’t exist, in my opinion.

This begs the question, “Shouldn't the FTC be protecting consumers regardless of reviews' sources.”

You tell me. What’s the real difference if Nik Software sends me, and Digital Photo Pro magazine, a copy of their new Viveza 2 software for review?

I’ll tell you what the difference is. I probably have to tell you that I received a free copy of the software to review, yet Digital Photo Pro magazine definitely doesn’t have to tell you a thing about how they got the product, whether the reviewer keeps it or not.

Of course, if I return the software after I test and review it, it appears as though I don’t have to reveal that I got it, on-loan, to evaluate it.

Second, the FTC regulations are poorly written, poorly thought out and very hard to understand. In part this comes from the way they are written. They are not traditional regulations which clearly state what you may or may not do, and how you have to do it. They only thing that they state clearly is, that if you are subject to the regulations, and don’t fulfill them, you will be subject to an $11,000 fine per violation.

I would characterize the regulations as a collection of anecdotal examples from which we are to glean whether or not we are subject to the regulations, what the FTC wants us to do, and how we are to conduct ourselves under them.

Specific definitions in the examples are almost non-existent, and clarity is most definitely non-existent.

If I receive a lens for free to review, then return it once the review is complete, in my opinion, I’ve received no material value from the loan of the product, but the FTC regulations are unclear whether or not that’s true.

Moreover, the regulations are unclear what, when, where, and how my disclosure to the public is to be made about any financial or business relationship between me and the company providing the product for review.

I think my readers are pretty smart people. I think that after reading my reviews they are able to discern whether or not I deserve their trust. If readers don’t find my reviews trustworthy, they’re going to go elsewhere for reviews.

If the FTC wants to legislate reviewer ethics, they should at least be doing that for everyone equally, not just a subset of reviewers. Regardless, the FTC should leave ethical judgments to the public. The public quickly leaves reviewers in the dust, who aren’t honest, candid and accurate.

You can read the NSL Photography Blog Editorial Policy for Product and Services Reviews on our website.


Herb said...

Ned, great commentary. I can't say that I agree with you that this kind of regulation of reviews shouldn't be enacted, however, I agree that the regulations as written are a disaster, and should apply to all reviews, whether in 21st century media, or traditional media.

Artie said...

Great editorial Ned.

Leave it to the Feds, no matter who is in power, to come up with something that no one can be sure of.

I scanned the document from the link you provided. What a mess!!!!!

No wonder bloggers are so upset.

Thanks for the great photo articles. I look forward to your new articles every week.

Joanne said...

As a writer myself, I think your article is dead on.

Steve said...

Ned, I'm a big supporter of you and your Blog. I love your articles here and on Consumer Traveler and look forward to the day when the likes of CNN and MSNBC realize that they need a good photography column in their travel sections and that you are "the man."

On the other hand, the FTC regs make sense to me. Other than your point that it should cover all media, I just don't see the problem with them.

Your #1 fan,


Ned S. Levi said...

Wow Steve, thanks.

I have little problem with the general gist of what the FTC wants, though I think that in general, the government shouldn't be legislating morals and ethics, plus as you pointed out, and I've said, why should tradition media outlet reviews be exempt from these regs if the idea behind them is so important.

The big problem with the regs is how they're written. As a journalist, when I look to the regs to tell me what is okay, and what isn't, and how I'm expected to follow them, I find the definitions too undefined to guide me, the regulations too poorly written to understand exactly what's okay and what's not, and no guidance as to how I'm to comply with the regulations.

Forgetting for the moment the idea of following the spirit and intent of the regulations just because it's right, you've got to remember the one thing which is well defined in the regulations is the hefty fine. Like everyone else, I don't want to be fined. Right now, as things stand, in my opinion, and that of others including lawyers specializing in the law and how it affects "the media" the FTC can fine almost anyone over these regulations "at their whim." In fact, many doubt these regulations will pass Constitution muster since they are so poorly written and therefore too general to expect anyone to actually understand clearly enough to know how to comply with them.

So that's the problem.

Best regards,


Sharif said...

Fairness alone is not present in these new regulations. If they aren't going to cover all reviewers, the regulations are worthless, especially considering how many "tradition" media operations are now solely on the Internet, but under the FTC are still exempt. Not just that, but how are we to know who we can trust if some can thumb their nose at these rules and some can't.

The FTC needs to completely rethink their position.

Thanks for bringing this to our attention Ned.

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