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.