To Whom It May Concern at the Federal Trade Commission: I haven’t had time yet to read the entire 81-page “Guides Concerning the Use of Endorsements and Testimonials in Advertising” document—though I certainly look forward to doing so—but already what I’ve read about it in the media, including statements by FTC spokespeople, raises a number of questions that I believe need clarification, particularly if I am to understand the distinction you make between bloggers, who are required to disclose their “material connections” with any companies that provide them with consumer products for the purposes of review, and media companies, which are not required to disclose such connections—primarily, if I understand you correctly, because you believe bloggers are in fact receiving those consumer products not for review but for endorsement, and that receipt of those consumer products constitutes compensation from advertisers.
- Will the New York Times‘ “Paper Cuts” or the Los Angeles Times‘ “Jacket Copy” or “Shelf Life” at Entertainment Weekly, to pick three examples, be bound by the same FTC guidelines as The Elegant Variation or Smart Bitches, Trashy Books? If not, why not?
- If a book blogger assigns book reviews to other writers, does that blogger then meet the standard the FTC has established for media companies freeing them from the obligation to disclose the provenance of the products under review? If so, how little can bloggers get away with paying their reviewers? How about nothing? Is nothing an acceptable level of payment for contracted reviewers?
- If an unpaid blogger at the Huffington Post “endorses” a consumer product without meeting the FTC guidelines for disclosure of “material connections” to the makers of that consumer product, who’s liable: the blogger or the Huffington Post?
- If a blogger prints out a series of blog posts and distributes those printed copies, is he now the publisher of a newspaper or magazine? If so, the Village Voice is distributed for free, so can a blogger/publisher distribute his newspaper or magazine for free, too?
- What if a blogger confines herself to stating demonstrably proven facts about a book, its author, its contents, and the matter of its publication? Does the FTC consider that an endorsement? What if she confines herself to stating such facts and includes links to an ecommerce site? Has her writing somehow been transformed from a statement of fact to an endorsement?
- For that matter, what if a blogger asks an author questions and publishes the answers he receives? Is that an endorsement of the author’s book? Does the FTC’s answer change depending on the presence of links to ecommerce sites?
- If the FTC believes that consumer products received by individual bloggers are “compensation” for endorsement, are individual bloggers required to declare those consumer products to the IRS as income?
- If individual bloggers will be required to declare received consumer products as taxable income, will media companies be similarly required? If not, why not?
- If a book blogger decides to register herself as a personal corporation, would you consider her as a small media company as opposed to an individual blogger? If so, do the FTC guidelines continue to apply to her?
- Just out of curiosity, will the FTC be requiring authors who blurb other authors’ books to disclose the “material connections” they have to those authors and the publishers of those books? If so, will those requirements apply to blurbs printed on book jackets as well as print advertising? (And if such disclosures are not made, against whom should a complaint be made: the publisher or the author who wrote the blurb?) If not, why not?
- As long as we’re on the subject of endorsements, will the FTC be requiring celebrities to disclose the “material connections” they share with the producers of the clothes and accessories they wear when they make public appearances—say, for example, on the red carpet at the Academy Awards? If not, why not?
I’m sure I’m not the only person asking these questions, and I’m sure these aren’t the only questions that people will be asking about the FTC’s new guidelines. I look forward to what will no doubt be a lively discussion.