Why don’t popular websites like Refinery 29 and Glamour.com have to disclose the fact that they have received products for free while individual bloggers do have to make such disclosures? Clearly, the editors and other contributing writers of such sites are seeded with product the same way bloggers are, but the vast majority of those sites do not include any sort of disclosure notice to muck up the look and feel of their sites (let alone the posts themselves)… why is that?
The latest guidance from the FTC (released in March of this year) requires bloggers to clearly and conspicuously disclose when they’ve received products (solicited or unsolicited) to review on their blogs – regardless of whether or not they were paid and whether or not the review is a positive one. The expectation is that such disclosure should occur within the blog post itself, and be located as close to the relevant portion of the post as possible (aesthetics be damned…) so as to avoid any chance, however remote, of consumer confusion.
As we discussed in a prior post, the FTC’s focus on blogger compensation and disclosure is actually a good thing because it legitimizes blogging as a form of journalism. However, the law has been slow to catch up to reality, which has resulted in blogs being more highly scrutinized than print and online magazines, despite the increasingly blurry lines between these modes of journalism.
Traditionally, the FTC’s rationale has been that consumers perceive magazines (both online and offline) differently than they perceive blogs. In implementing the 2009 guidelines, the FTC stated that consumers expected that publications would receive free trial products while blogs were (and still mostly are) run by individuals, and therefore it wasn’t always apparent to a consumer whether the blogger was independently endorsing a product they had themselves purchased or whether a company had actually seeded that product for review. The FTC issued the guidelines to make it more transparent when an individual (as opposed to an entity) was giving an endorsement because the individual blogger herself presumably gets the benefit of a “free” product, whereas an editor or contributing writer for a larger publication does not (those of you who have worked in traditional media can query whether or not that is, in fact, true). So, for example, when a Glamour.com editor or contributing writer reviews a product, the FTC considers it a Glamour review. However, when I review it on my (world-renown imaginary) beauty blog, it’s my review, and I’m the one getting “compensated,” so the review becomes an endorsement instead of a pure review, and that is why disclosure is essential. Right or wrong, that’s been the general perception and rationale to date. Admittedly, these distinctions are now laughable and one would have to think that, over time, the interpretation and enforcement of truth-in-advertising laws will become much more uniform across all media.