FTC Redux, Bloggers and Guidelines

Ξ May 28th, 2009 | → 6 Comments | ∇ A Day at a Time, Technology, Wine News |

The other day I posted the gloss, Bloggers Face New FTC Scrutiny on the FTC’s proposed updated media guidelines, the first major update since 1980, that will, if approved, for the first time take bloggers and new social media generally under its purview. Bloggers would no longer enjoy an exemption from ‘truth in advertising’ regulation now binding upon traditional media.
For my initial effort I sought out comment from the FTC and found their Office of Public Affairs to be most responsive and helpful. But it soon became clear to me, as I began to grasp the implications of the FTC’s proposed action, that my post, tailored to wine industry bloggers, both citizen and professional, was incomplete. I needed clarification. Further, the interest shown and questions posed by participants on a number of sophisticated wine forum sites, including that of Wine Spectator and erobertparker.com, made it doubly clear that my work was not done. Again I wrote the FTC with questions. And again, this time after consultation with their legal staff, I was promptly provided direction.
First a word with respect to the responses to the news on the aforementioned wine forums. As with anything to do with federal oversight, many posters were decidedly suspicious, a generally healthy approach, in my view. No less an august figure than Mr. Parker himself contributed:
“Truism as old as time….the most frightening thing you will ever hear…..’I am from the government and I am here to help you’…..”.
Other wine bloggers and interested parties, by no means limited to the participants on the erobrtparker forum thread, were openly hostile. But there were some in the blogosphere who offered constructive comment, who welcomed the development. Indeed, many found the FTC’s proposed guidelines reasonable and, insofar as they were wine bloggers, in keeping with their own well-established wine or winery-blogging ethic.
Whatever a given wine blogger’s disposition, one idea needs to be stressed. The FTC is interested primarily in voluntary compliance. This simply means that a blogger will be asked to publicly disclose any financial or compensatory relation to the producer of a product under review so as to properly inform the consumer’s purchasing decision. It is all about alerting the consumer to potential conflicts of interest. Nothing more, nothing less.
On to the heart of the matter. From the FTC, (including my questions):
FTC We are able to answer your questions to some extent (see below), within the framework of the basic principles that inform the Guides. But until after the revisions are finalized and implemented, it is going to be difficult to provide a lot of specific information about how they will affect niche publications online.
Example 8: An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.
Admin How might this affect on-line collective social wine reviewing sites? Would the owner/administrator be responsible for keeping such ‘advertorial reviews’ off the message board?
FTC There would not be a requirement to keep “advertorial reviews” off the message board; there would just have to be disclosure of any material connection between the reviewer and the wine maker. It is unlikely that the site would have to police compliance, but it should have a disclosure policy.
Admin I was also wondering about other forms of compensation a blogger might receive. What if their travel expenses were paid to visit a vineyard, for example? Should that be disclosed?
FTC Knowledge that the reviewer received a free trip to the vineyard would likely affect the consumers’ view of the credibility of the endorsement and should be disclosed. On the other hand, for example, in many vineyards around the country, wine tastings are free to the public. Something that is free to public does not need to be disclosed.
Now, about the matter of compliance and the recourse a consumer might soon enjoy. Perhaps the most important element in the FTC’s taking an interest in bloggers is that it would now be possible for a consumer or other interested parties to employ the FTC’s Complaint function, or what is called the Consumer Response Center. As the FTC writes:
The FTC’s Consumer Response Center is a critical tool for the agency in terms of protecting consumers.[....] The FTC does not resolve individual consumer complaints, but it often uses complaint data (volume of complaints and estimated degree of harm to consumers) to determine whether to investigate companies that may be defrauding consumers.
It is not clear, owing to the still not fully realized implications of adding bloggers to the FTC’s purview, what form or degree of non-compliance a blogger might have to achieve before the FTC would take an active interest. Clearly the old language above refers only to ‘companies’. There is much the FTC needs to rewrite to provide proper guidance to bloggers.
But perhaps the above is not entirely relevant for the wine or winery blogger, especially in light of the often punishing rebukes from other bloggers when non-compliance is found out, not to mention the glare of traditional media. The world of wine is small. The major players are known. The echo chamber, loud. That wine may well be the most profound of drinks does not mean only the profound drink it.
Mutual regard side, the point is that it nevertheless remains true that a new avenue of complaint, provided the guidelines are approved, will now be open. I include mention of it here, not because I believe it will used, but because it is a fundamental part of the institutional logic of FTC oversight. In any event, simple voluntary disclosure renders the matter null and void.
This topic is by no means exhausted. Questions continue to multiply. The good news is that I am on the FTC’s media list for notification of the pending vote on the guidelines, a vote to come as early as this summer. I will provide an update when warranted.


6 Responses to ' FTC Redux, Bloggers and Guidelines '

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  1. 1WineDude said,

    on May 29th, 2009 at 4:20 am

    It all sounds quite reasonable, actually. I’d be willing to bet that many, many wine writers / bloggers already do this. Of course, I’m still not sure how the government would be able to enforce this…

  2. Administrator said,

    on May 29th, 2009 at 11:39 am

    Thanks for the thought, Joe. I think you are correct about many wine bloggers and disclosure. But one needn’t wander far to find notable exceptions, some of whom are currently ‘hot’ topics in the blogosphere.

  3. Mike Pollard said,

    on May 29th, 2009 at 1:02 pm

    For myself I see the answer to possible conflicts of interest (COI) as quite simple – just disclose the relevant information if you believe there has been a COI or the appearance of a COI. For example I once arranged a tasting at a winery in Victoria (Australia). In addition to the tasting my wife and I received a free meal. I disclosed that information in the blog post. In the past I have received books on wine to review and so I disclosed that the books were sent free of charge. However I don’t feel there is any need to make a disclosure if I am given a private tasting at a winery because its my experience that such tastings are there for the asking and not restricted to bloggers or other members of the press.

  4. Administrator said,

    on May 29th, 2009 at 1:14 pm

    Good to hear from you, Mike. The simplicity and sensibility of your approach is refreshing. I think you are correct on all counts. Cheers.

  5. tish said,

    on May 31st, 2009 at 8:01 pm

    Interesting. It is truly helpful for you to post about this topic, as many of us DO CARE about the reality of potential conflicts and want to do the right thing.

  6. Administrator said,

    on May 31st, 2009 at 8:10 pm

    Thank you, Tish. It is an honor you visit this space.

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