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FTC Guides Update

I'm sure plenty of people will blog about this weekend's Kidlitosphere conference (it was, after all, a conference for bloggers!).  People were also tweeting live. (See the #kidlitcon hashtag on Twitter. Or check this out: Gregory Pincus posted the Twitter transcript from Saturday.)

I did want to post my own notes from the FTC session, however, since I blogged about the new FTC guides recently. The FTC representative who spoke to the conference was Mary Engle, Associate Director for Advertising Practices. Items in quotation marks are direct quotes. She made the following points:

The endorsement guides are not rules or regulations. The widely-quoted $11,000-fine figure applies to violations of rules, not guides.

The kinds of "material connections" the FTC wants people to disclose are those that would not reasonably be expected by a viewer/reader/listener of a message.

Ms. Engle acknowledged that the FTC could have done a better job distinguishing book reviews and marketing word-of-mouth campaign. On book reviews: "I don't see that as an 'advertising message' ..."

On the issue of ARCs as "compensation," Ms. Engle explained that the FTC was not intending to make any judgments about taxable income--("we didn't mean it in that way")--that, indeed, issues of taxability are the bailiwick of the IRS.  The word "compensation" was chosen because they were just looking for a "word or phrase different from being paid," i.e., they were trying to describe receipt of an item other than money.

The biggest clarification Ms. Engle made was that independent online book reviewers are, indeed, more akin to print reviewers than they are to endorsers, and disclosure guides would not apply to them any differently. However, it seems that personal blogs (and Facebook pages, etc.) are still covered by the guides.

When an audience member asked about the Amazon affiliate program (receiving small amounts of money for click-through links), Ms. Engle said that was a gray area, and would probably be judged on a case-by-case basis. The FTC would consider the likely expectations of the consumer.

When I asked about the subjectivity issue, Ms. Engle said that the subjectivity of statements (versus factual claims, such as whether a product cures cancer) is not the determinant of whether a message is an endorsement, because advertising messages can include subjective statements. I found this a little puzzling, since the FTC guides themselves distinguish pretty strongly between subjective and factual claims, as well as dwelling on the more fact-based claims such as typical results and product performance.  (Perhaps she was trying not to create a loophole whereby advertisers could evade the guides by tossing a few subjective claims into the message.)

In response to a question about where a blog disclosure should appear--must it be in the actual post, or could it be in the "about" section?--Ms. Engle stated the FTC standard is that disclosures must be "clear and prominent."

Another point she made was that in any problem with a book blogger, the FTC would probably pursue the publisher first.  Overall, the kinds of situations the FTC would be most concerned about: book bloggers who are paid by publishers; bloggers who act as word-of-mouth marketers by consistently spreading positive messages about products (e.g., books) throughout cyberspace, and receive a steady stream of those products (e.g., books) from the publisher.

I'm still not sure that the FTC fully appreciates the distinction between people who blog about books on their own personal blogs and word-of-mouth-marketers who are paid to buzz about products, but I think the blogging community has made great strides in illuminating the FTC's understanding of book-review blogs, and how they are different from word-of-mouth marketing campaigns.

(Additionally, the bloggers at the conference discussed several ethical questions at length, and many of them agree that book reviewers should consider disclosing the sources of their review copies voluntarily as a matter of transparency, whether required or not by the FTC.)

Ms. Engle said the FTC would be posting frequently-asked-questions (FAQs) in a few weeks; suggested questions can be send to endorsements[at]ftc[dot]gov.

And if you're interested in further takes on this session from others who were there:

A Chair, a Fireplace & a Tea Cozy on the FTC Kidlitcon Session
Galleysmith on the FTC Kidlitcon Session
Sue Corbett in Publishers Weekly on the FTC Kidlitcon Session
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Comments

Thanks, Jenn--nice summary. The only thing I don't like so far is the "consistently spreading postive messages." After several years as a book reviewer without a choice about which books she reviewed, I made a conscious choice to not review books I didn't like--I was burnt out on putting negative stuff "out there." So any reviews that I do are postive. Including on Goodreads. But I don't think I hit any of the other targets...sigh. Good to hear your update, though.
The FTC rep acknowledged there are a LOT of gray areas. I think that when in doubt, the best bet is to lean toward disclosure. Frex, if you post your review policy, it will be clear why your reviews are all positive.

Clearly, the FTC's policies in this area are still evolving, given that they are inviting questions and preparing the FAQ!
Thanks for the great recap (and for Tweeting about mine). I totally forgot to add that bloggers who seem to be schilling for one particular publisher could be looked at more closely.
It seemed to me that they were intending to address word-of-mouth marketing campaigns in the first place, and they didn't realize at first that book reviewers typically operate differently. But they pointed out that it would be possible for a person to operate as a WOMMA by just posting glowing reviews of free books--and theoretically, I suppose that's true, though I don't know of anyone who does that!

(Anonymous)

Great summary! I think that, for the most part, book bloggers who review are OK.

What I think would raise eyebrows at the FTC, based on Engle's remarks and the questions, etc.? A blog that was pure press release and jacket copy, no original content at all, especially if it were all about one publisher. Something with no "review."
(Thanks, Liz B.!)

They acknowledge there are huge gray areas, so they would evaluate on a case-by-case basis, looking at several factors. I suspect your example would look suspicious--but then the question would be what compensation did the blogger receive.

Edited at 2009-10-18 06:26 pm (UTC)

(Anonymous)

Great summary! I think that, for the most part, book bloggers who review are OK.

What I think would raise eyebrows at the FTC, based on Engle's remarks and the questions, etc.? A blog that was pure press release and jacket copy, no original content at all, especially if it were all about one publisher. Something with no "review."

Liz B. / Tea Cozy

(Anonymous)

Interesting post, Jenn.

coll
Thanks, Coll!
Great summary, Jenn (and so nice to meet you yesterday). And may I say, "what a relief!"
Nice to meet you, too! And Cornelius!
Nice to read your summary. I am still pouting about not being able to attend the conference. Sigh.

As for the FTC stuff, I rarely do reviews but I do have the affiliate links and will post a disclosure.

I just have a feeling there's another can of worms in here somewhere that we haven't seen yet.
It would've been great if you could go, but there's always more to do than we have time for in life!

We'll see what happens. I think the FTC's interpretation of these guides is evolving as they look at the book blog issue. The FAQs will be quite interesting.
Thanks for the wonderful summary, Jenn. It must have been tough to wear your listening ears through all of this. Wow, murky stuff.

So...why do I still feel like there's a trap door somewhere, with teeth-gnashing monsters beneath?
I think we'll know even more when the FAQs come out.