The OF Blog: About that FTC guides update that has some in a tizzy

Monday, October 05, 2009

About that FTC guides update that has some in a tizzy

So apparently the sky is falling.  Or at least, that's some of the reaction I've seen in some form or fashion in regards to the recent update of the Federal Trade Commission's updating of their guides for advertisers and consumers, which hadn't been updated since 1980.  Apparently some are quite worried that there might be an $11,000 fine if they fail to disclose after December 1, 2009 that they received galley proofs, regular-edition books, or anything else related to book reviewing.  I think the language of the FTC release is interesting:

The notice incorporates several changes to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address endorsements by consumers, experts, organizations, and celebrities, as well as the disclosure of important connections between advertisers and endorsers. The Guides were last updated in 1980. 

Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results not typical” – the revised Guides no longer contain this safe harbor.
 The first thing I noticed about the FTC release is that there is nothing in the language directed toward journalists or those who engage in journalistic practices.  The language of the release refers explicitly to "endorsements" and "testimonials," both of which run counter to the purported reasons for reviewing.  It is no secret that newspapers like the New York Times or magazines such as The Atlantic receive review copies for consideration.  That has been a practice for several decades now and has never (including in the description of the revised FTC guidelines) been a problem with the FTC as far as I can remember.  This blog is similar in that I receive hundreds of review copies a year; less than 10% are read and even fewer than that are reviewed, with several receiving mixed reviews or at best qualified praise for the novels' strengths far outweighing perceived weaknesses. 

Since there is no monetary connection involved and the presumed "in kind" would refer to objects for consideration with no specified obligation to comment in order to receive future "in kind" mailings of books, one might argue that in creating an entity that is related to the journalistic nature of review magazines and newspapers (and to a degree, even less connected to the publishing industry, since there are no advertisements on this particular blog), that said entity (this blog, for example) would be outside the intended purview of the updated FTC guidelines. 

But unfortunately, there seems to be a double standard.  Edward Champion did a phone interview with Richard Cleland of the Bureau of Consumer Protection about the ways the new FTC regulations might apply to book bloggers and freelance reviewers such as myself.  Cleland's arguments are rather revealing in that there is arguably a false dichotomy created between having a single-owner/operated entity (such as this review blog) and between a corporation such as a newspaper or magazine that has a circulation over 100,000.  His idea that a reviewer could "return" a book after a review without disclosing that it was received (not to mention the implication that the non-reviewed books, which I have in the high hundreds now, are included in the "to be returned" pile) is rather ludicrous.  If I were to do such a thing, it would cost me hundreds of dollars at a minimum to ship books back to the publishers, where doubtless they would be pulped, just as they are when a bookstore returns them (at the publisher's cost, mind you).  Something tells me that is not exactly what the updated FTC guidelines are meant to cover, those situations where a monetary burden would be placed on a reviewer in order to prevent any implication that there is a strong material connection between the reviewer and the advertiser (or publisher in this case). 

So what to do?  Oh, I suppose I'll just state yet once again for the thousands reading this blog per week that I receive a lot of books from publishers.  Unless I explicitly say otherwise (even though this will be the majority of the times I bother to review a book), presume that I received the book as a review copy.  I will add a disclaimer note to the sidebar that will be quite sarcastic and pointed shortly, at least until I decide whether or not to seek clarification of the above points and others from a few who know trade law a bit more than I do.  I'm not worried about any of this; rather I'm wondering whether or not bad policy is being developed (and yes, I've read through this file before formulating my opinions) and if there needs to be a pestering campaign initiated to get a firmer response than what Cleland gave in that interview above.


Jonathan M said...

"I'll just state yet once again for the thousands reading this blog per week that I receive a lot of books from publishers. Unless I explicitly say otherwise (even though this will be the majority of the times I bother to review a book)"

You should say that anyway. It should be the first line of any review you write : "I got this book for free, I get many books for free from this publisher".

The whole reason for sending out promotional copies is to create the impression that certain books are being organically talked about. While some people write criticism and some people write reviews, there are a lot of people who don't write enough or in a dispassionate enough way for their references to be journalistic and as such I think that a law demanding that bloggers make it clear when they get stuff for free is a very good idea indeed.

The caveat is not aimed at people who regularly read your blog but rather the people who are looking for information about a particular book and who find their way to a blog through google.

Mihai A. said...

Well, I am not sure if this regulation applies to me since I live in Romania, but still.
This is something of a kind. It is supposed for me to send each book, reviewed or not, back? And what is the point then in making a relationship with publishers, editors and authors? Let's be honest, the wide majority of the book bloggers are not in for the free books, but for the community of the people with the same passion, for interacting with the authors and publishers you love. And what if the books in question are sent as gifts? After all I receive many books as gifts from my wife, my parents and my friends. So why not from the publishers? It is just a gift that I decide to review for my own pleasure. And if I would have liked to open a book store I would certainly need more than just the review copies received.
I have an usual post where I feature the books I received with a proper thank you for their senders. Since I will not be able to review all those books I find it to be a proper way to show them that after all the books sent are noticed. I would post a proper statement of the book provenience if necessary, but to put the book bloggers to send back their review copies sounds insane.

Jonathan M said...

Mihai : "And what is the point then in making a relationship with publishers, editors and authors?"

I would argue that if you're an independent reviewer who speaks his mind then you have no business having that kind of relationship in the first place.

Adam Whitehead said...

Of course, in the real world, no book reviewer has the funds available to buy every single book that is released, and is thus reliant on review copies, just as film reviewers are not expected to buy tickets to every single film they review. This would be unworkable.

Getting review copies for free, whilst positive for generating blogging material, is certainly not a reward in itself and I have not encountered it being treated as such by publishers or reviewers. The feeling of "Hey, free books!" lasts until about the time the third package of vampire romance books shows up, at which point you realise it's just a standardised form of marketing that has been around for many years.

felix said...

as an expert in trade law i would like to advise you that the sky is indeed literally falling

felix said...

new regulations to be adopted by the FTC at 16 CFR 256 grant the Commission the authority to build a ginormous Kansas-sized cannon to blow the moon right out of the sky and smash up the sun pretty bad too, and the Commission intends to exercise that authority RIGHT NOW, see the Commission’s 10/05/2009 Federal Register notice published at 73 FR 74563

felix said...

a hail of flaming moon-chunks and particles of nuclear sun-debris will fall on the earth scorching bloggers and non-bloggers alike, not even the mainstream media in their concrete bunkers will survive

felix said...

Obama promised he wouldn’t let the FTC do this to us he PROMISED but he LIED

Lsrry said...

OK, now I'm going to panic, Felix. But I guess the FTC might look into that case of interstate transport of heat-packing hamsters as well? ;)


Comments after work. Lots to do still, lots more to say, I think.

Unknown said...

What a waste of time and money to worry about bloggers getting freebies from publishers in the hopes that it will create some publicity.
Like it was mentioned, it has been done for decades to promote products. There wasn't any doubt that blogs like this or any other do reviews (mine included) may get a free book or three in their lifetime. I just look for honesty in the review. If it's an advertisement for a product just state the fact. Problem solved and I didn't need any congressional oversight to come up with my ruling.

Lsrry said...


Like hell I'm going to include a disclaimer at the beginning of each review! I like to think I have a bit more journalistic integrity than the male enhancement commercials! :P

The really irritating part about the Cleland interview that Ed Champion didn't discuss (but probably already thought) is that there's a much more tangled web between a review network set up with a newspaper (which has its advertising department sometimes calling the shots on how certain pieces are presented) and its advertisers. I receive what I consider to be little more than "maybe you'll consider this one?" mailings and that's much less of an entanglement than having ad money possibly dictating book coverage/placement in newspaper review pieces, among other matters.

That being said, the worst part is remembering that all of this is akin to the damn warnings that now have to appear with McDonald's coffee or even with a pack of toothpicks. CYAing has become a true art form in the US, no? Well that, and the idea that this blog would be governed by the same set of assumptions that apply to ExtenZe.

Mihai A. said...

Jonathan, that might be true. But with the interviews, talks about books and review copies that relationship is inevitabile built. But I believe that as long as the reviews remain honest and there is no pressure for positive reviews than those relationships should not be a problem.

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