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The Federal Trade Commission recently revised its “Endorsements and Testimonial Guides.” The Guides are the “official interpretation” of the Federal Trade Commission Act, which, among other things, provide the basis for the FTC’s authority to regulate advertising. According to a note in the latest Harvard Law Review, a “core concern” of the FTC in revising the Guides was “the use of consumer testimonials in the traditional advertisements for dietary supplements.” Thus, the new Guides, promulgated in October 2007, have been revised to cover “consumer-generated media” (e.g., blogs). The Guides require bloggers to disclose any “material connection[s]” they have with producers of any products that they “endorse” on their blogs. A “material connection” would not only include “getting paid”, but also any swag sent to the blogger—even if were unsolicited, with no conditions attached. The aforementioned HLR note comes down hard against the constitutionality of the FTC’s new approach:
[A] constitutional analysis of unpaid blogger endorsements shows that such endorsements are not commercial speech—which receives reduced constitutional protection—but rather noncommercial speech entitled to full First Amendment protection. Not only do the Guides burden bloggers’ protected speech, they also create an unfair double standard by exempting legacy media from the Guides’ disclosure requirements. Therefore, the Guides should be ruled unconstitutional as applied to bloggers ... Consumers should be wary of government policies that favor one form of media over another. Government discrimination among media forms based on “editorial independence” is unprecedented.
Put another way: Valerie Bertinelli shilling for Jenny Craig on television is not the same as Maud Newton reviewing some book sent to her by a publisher. Moreover, there is no way to reconcile a rule that allows newspapers to review their own advertisers, without disclosure, while denying bloggers the same right.
-posted by brian
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