Arts Desk

The Federal Trade Commission’s Incoherent Response to Dissent

As some of you may have noticed in this week's letters section, David Vladeck, director of the Bureau of Consumer Protection, took issue with my post about the FTC's new "guidelines" regarding independent bloggers who review products.

In grand government style, Vladeck's letter is an ode to bullshit obfuscation:

The relevant inconsistencies have been bolded by yours truly for convenience.

In the Oct. 6 article “The Federal Grade Commission Goes After Bloggers, Spares Journos Who Do the Same Thing,” Washington City Paper incorrectly reported that bloggers who offer endorsements must disclose any payments they have received from the subjects of their reviews or face penalties of up to $11,000.

The Federal Trade Commission’s revised Guides governing endorsements and testimonials are voluntary guidance to assist advertisers in complying with the FTC Act, which prohibits unfair and deceptive commercial practices.  The Guides are not legally binding rules or regulations, so violations of the Guides are not subject to civil penalties.  If the Commission has reason to believe that testimonials or endorsements are deceptive and violate the FTC Act, the Commission could bring a law enforcement action seeking a federal court injunction or an administrative cease and desist order, and possibly monetary civil penalties.

Note, if you will, that Vladeck first says "the guides are...are not subject to civil penalties," but closes by saying "the commission could bring a law enforcement action...and possibly monetary civil penalties."

Take that in for a moment.

Now, my editor said that my own take was not quite nuanced enough to pass muster. Fair enough. But IMHO, nuance wasn't necessary. The FTC's new "guidelines" are illiberal on their face. Sifting through 80-some pages of department dreck, as other writers have done, wouldn't have told me anything different. My editor's second critique was that I used the word "will" instead of "might," "can," or "will consider," here:

According to GalleyCat, the Federal Trade Commission will fine independent bloggers up to $11,000 if they fail to disclose that they’ve received a product for free.

The nuanced take on Vladeck's letter is this: His department can't fine you "up to" $11k on its own, but mightshould it decide you have repeatedly failed to follow its illiberal "guidelines" and are thus in the service of some corporate behemoth–involve the courts to do so.

Feel better? I don't, and I doubt that the many independent bloggers who now have to religiously disclose whether or not they've received books, albums, or laundry detergent for free, do either.

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  • Matt Freeman

    The huge difference that Vladeck's letter brings out -- and that you're still ignoring -- is the element of deception. He says that if bloggers take freebies and then publish testimonials or endorsements that the FTC thinks are deceptive and that violate the FTC Act, the FTC could seek criminal penalties. So it's not just if bloggers take a free blender or a cruise or cash or whatever, it's if bloggers take it and then publish a deceptive endorsement about the product.

    That's an enormous distinction, and it's the kind of issue the FTC ought to be involved in, so as to protect consumers from dishonest marketing campaigns by companies that make lousy blenders but then pay someone who presents themselves to consumers as independent, and then shills for it.

    You got the story wrong. You should admit it, and correct it.

  • http://www.skipoliva.com S.M. Oliva

    Instead of looking at what the FTC says, try looking at what they do:

    http://blog.mises.org/archives/010840.asp

    "Consumer protection" has never been part of the FTC's actual work.

  • http://washingtoncitypaper.com Mike Riggs

    Matt: 1.) I didn't get the story wrong. The FTC's role in preventing and policing fraud is well documented. My post was about the FTC's idiotic policy that singles out independent bloggers but spares newspapers and traditional media. Maybe you should go back and read the original post.

    As others have pointed out, the FTC's new "guidelines" could be impossible to enforce. Which means if they get enforced at all, and don't just hover over bloggers' heads like a career guillotine, they'll be enforced haphazardly and inconsistently.

    Furthermore, who says people at traditional media don't shill for bad products? Shilling for Bush's war in Iraq got you invited to the White House. Slate's shilling for Segway got two of its writers invited to a junket in Paris.

    Lastly, if I gave you a washing machine for free, and it was a piece of shit that ruined your clothes, why in Christ's name would you say something good about it?

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