Our colleagues at PRNewser landed an interview with Richard Cleland, the Federal Trade Commission official who’s become the federal point person for the conversation about the new FTC guidelines regarding commercial endorsements, including those that take place online. The first significant information to come out of that conversation, reiterating a point made elsewhere yesterday: There is no fine for bloggers. “If people think that the FTC is going to issue them a citation for $11,000 because they failed to disclose that they got a free box of Pampers,” Cleland says, “that’s not true.”
“We have never brought a case against a consumer endorser and we’ve never brought a case against somebody simply for failure to disclose a material connection,” he explains. “Where we have brought cases, there are other issues involved, not only failing to disclose a material connection but also making other misrepresentations about a product, a serious product like a health product or something like that. We have brought those cases but not against the consumer endorser, we have brought those cases against the advertiser that was behind it.”
That echoes a point Cleland made to Fast Company earlier this week: “Our approach is going to be educational, particularly with bloggers. We’re focusing on the advertisers: What kind of education are you providing them, are you monitoring the bloggers and whether what they’re saying is true?” This certainly addresses the fear many bloggers had about having to add disclaimers to their sites, but it may actually mean a bigger headache for book publishers.
Let me explain: Cleland’s remarks do nothing to alter the FTC’s fundamental position that when a commercial interest sends a consumer good to a blogger, the resulting relationship is between an advertiser and a sponsor, rather than between a producer and a reviewer, the way it would be if that same consumer good was delivered to the New York Times. So while book publishers don’t have to monitor newspapers and magazines to make sure that the contents of the reviews appearing in them are factual, they may (after December 1) be obligated to monitor the contents of the reviews that run on the blogs with which they’ve dealt to make sure that no untrue claims are made about the books therein.
Now, in most scenarios, this isn’t going to be a problem because, let’s face it, the claims most reviewers make about books aren’t terribly significant in terms of their impact to consumers, and some claims—”reading William T. Vollmann‘s new novel will raise your IQ 20 points,” for example—are understood to be artistic rather than literal. But here are some other hypothetical statements that, once they have been redefined as sponsored endorsements rather than objective feedback or commentary, might (if they are not accompanied by disclosures) lead the FTC to start asking publishers pointed questions:
- “I used the recipes in Hungry Girl: 200 Under 200 and I lost 15 pounds in one week.”
- “After reading Andrew Weil‘s new book, my blood pressure went down, my cholesterol levels are at their best in years, and now I can run five miles a day without breaking a sweat. Also, Kevin Trudeau stinks.”
- “Thanks to The Four-Hour Work Week, I’ve doubled my income even though I’m working one-fifth the hours I used to six months ago.”
Maybe publishers won’t run into many, if any, blog posts that extreme. But if I understand the situation properly, unless they—and other producers of consumers goods—are able to lobby the FTC and effect a reformed definition of “compensation” that pinpoints the types of subsidized promotional material that truly ought to be labeled without roping in non-commercial speech, they’re going to have to make a significant effort to prepare themselves for the possibility.
And, frankly, if the bloggers to whom they send books are now “compensated spokespeople,” publishers may have to consider establishing explicit policies governing how those spokespeople are supposed to speak, if not some actual contracts for bloggers to sign. I mean, I’m no expert in how endorsement deals work, but it certainly doesn’t sound very efficient for a company to simply send a consumer good to a paid endorser and hope the endorser is going to do his or her job properly. Nike doesn’t just send Tiger Woods a crate of new gear every season and wait to see what he does with it, do they?
Well, that raises another point: Tiger Woods gets a bunch of money to get with all that new gear, but all book bloggers get is a book worth, in most cases, about $14 or $25. It’s a cliché, but you do get what you pay for. Maybe book publishers need to think about whether they’ll be better served after December 1 by dinky little compensation handed out to a bunch of random readers or a handful of lucrative endorsement deals to the right “public intellectuals,” bearing in mind that “public intellectual” means something much different in the Web 2.0 world than it did fifty years ago.[NOTE: My intuition is telling me this is probably a terrible idea not only for book publishers but for the distributors of just about any “cultural” consumer goods, and yet the idea that one ought to be able to endorse books the way one endorses sneakers won’t go away, even though it’s hard to imagine the circumstances under which such a plan would work. I’ve rewritten this paragraph three times in the hour since it went online trying to articulate the dilemma; maybe you can explain it?]