After reading that Parenting Blogs May Be Held Liable for Product Reviews, an article which quotes the always delightful Classy Mommy, Colleen, I have a few thoughts and suggestions to throw out there.
First, a fitting disclaimer: although I did discuss this with my husband, who is a lawyer, these are simply my own opinions and ideas and do not in any way constitute legal advice.
According to the article:
A regulatory review process is underway to determine whether reviews by bloggers like Padilla may be in violation of good business practices, said Richard Cleland, a spokesman for the Federal Trade Commission.
“The proposed revisions signal that the commission will apply existing principles of advertising law to new forms of media, like blogs,” Cleland said, adding that a decision on the proposal is expected sometime this summer.
I believe this comes down to whether we are journalists (and held to that standard of ethics) or marketers.
Are we receiving products as payment for our services or for editorial consideration?
If we are journalists merely reporting what our investigation has revealed, then I don’t see how our posts could be considered “false advertising.” We may have an obligation to perform some sort of due diligence, requesting independent documentation to support claims, but we ultimately are not responsible for those claims as long as we indicate they come from the manufacturer and not us.
While not everyone may enjoy product reviews, or find them to be hard-hitting reporting, I do believe they, for the most part, more closely resemble journalism than advertising. I still remember Christine’s video showing how to go shopping at Costco with six young children and leave with your shopping list, all your kids, and most of your sanity still intact.
The difficulty lies, yet again, in the fact that we are not only the journalists in our little business model, but also often the editors and the sales staff. We are responsible for everything from coding to circulation to selling ads in addition to planning and writing stories. Once upon a time newspapers worked that way, too.
This does not make this multi-role model unethical, just more complicated.
As more attention is directed towards blogs, we’ll have to ensure everything is even more clearly marked–what we have received and from whom. Here are a few possibilities to consider:
- Add a disclaimer visible on all pages of your blog (in the footer or sidebar).
- In every post, explain who sent you the item.
- If you make a statement beyond your own experience of the product, you can make it a quote and/or add some sort of citation. This will look cumbersome, of course, but it is an option.
- If you receive monetary compensation, clearly indicate that.
- Be wary of agents that try to put words in your mouth. I’ve received pitches with suggested language–they want you to make their claims for them. Don’t. Write your own posts.
- Related to the above, we could consider what, exactly, the company wants from us and why. We need to assess whether the company wants our opinion, our audience, our page rank, association with our brand, etc. And if you don’t feel comfortable with the project, don’t participate.
True, none of this guarantees protection. Anybody can sue anyone at any time for any reason…but the whole idea that the FTC is going to go after Mom and Pop bloggers for their honest opinions is absurd. How, exactly, will they determine which posts are advertising and which are editorial? What is the litmus test and how on earth will they gather information? What is a blog, an online magazine, a conversation, or a community? Not only is this unenforceable, it runs the risk of intruding into freedom of association and free speech.
The sad and telling thing is that, as with the CPSIA (and let’s hope indie artisans and small manufacturers come out in support of bloggers the way we came out in support of them), it has been the independents that have been keeping the mainstream honest.
At Mamanista, I’ve refused products even from trusted PR people when they could not produce proper documentation to back their claims about BPA-Free or other status. Along with Cool Mom Picks, we came out with a guide to choosing safer toys during the lead scare. I first found out about phthalates from Mom-101. When I want to find out how safe a children’s product is, I check the Zrecs Guide.
These are just a few examples of bloggers that have questioned claims, tracked down information, and even done their own investigation.
Yes, this is a business for us as well. But many of us are making far less blogging than our regular hourly wage. And many of the products we test are donated or given away to readers. It is fun and it is a labor of love and we approach it with a great respect for the manufacturers, retailers, and readers in our community.