Are Parenting Bloggers Liable for Product Reviews? Are Bloggers Marketers or Journalists?

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.

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8 comments

  1. Shelly says:

    I think it’s awful that a blogger could be held liable. But for a different reason. I’m a blogger and a reporter/editor for 15 years. For the most part journalism or journalists strive for letting the facts tell the story.

    Reviews in print or online are not journalism. They are opinions. Just like the editorial page in a newspaper. Regardless of whether the person making the opinion has done research or not.

    The questions shouldn’t be whether bloggers are marketers or journalists. They are neither. They are private people relaying their personal experience with and opinion of a product or issue.

    The fact is people are generally not liable for their opinions in an editorial page and shouldn’t be liable for their opinions on their blog.

    Shelly
    http://www.TheseAreTheSaladYears.com

  2. Shelly–It is a good point. At the same time, I think it is relevant to point out the ways in which blogging is closer to journalism than marketing. Most reviews in print are not on the editorials page and those writing them are not editors. Journalism is an imperfect model for blogging ethics, but I think it provides the best pre-existing guidance in terms of responsibility and disclosure.

  3. Marie says:

    I think it’s virtually impossible to lump bloggers into one category thereby making it difficult to have the same standards for every single blog. There are bloggers that have become marketers, some that charge to review products, etc. As the lines between a blogger and a marketer begin to blur, I think transparency is key.

    Companies should absolutely be able to back up claims on products, especially in relation to safety and chemicals. When dealing with toys specifically, some toy award programs require documentation to ensure the information is valid. Ideally bloggers would have the time/energy to request independent documentation to support these claims, but that is not always the case. Just like in the world of journalism, there just doesn’t seem to be the staff to always fact-check articles.

    I think the original appeal of blogs, especially those that review products, stems from the honest perspective from a real person. I also agree that there is really no litmus test on how they can gather information on every single blog and that targeting mom & pop bloggers is absurd.

    What’s important to remember is that anyone can have a blog; it’s up to the blogger to turn his/her blog into a trusted source.

  4. Marie–

    Excellent points! And I do not want to get too bogged down in categorization (my fault for framing it that way)…because I think you summed it up very well:

    What’s important to remember is that anyone can have a blog; it’s up to the blogger to turn his/her blog into a trusted source.To some extent, we have to let grown-ups be grown-ups and leave them to determine whose opinions they wish to trust.

  5. I think this is a great summary (along with some of the comments as well) of a thorny issue. I think it is true that a lot of parents rely on blogs for their information so just as people can be help liable for slander, bloggers do have to have an ethical standard. I think if bloggers are basically honest and writing truthful reviews and not just reviews that are always positive, then they are meeting their ethical standards just fine.

    Just my 2 cents. Thanks for the great blog article Candace!

  6. Classy Mommy says:

    All about Disclosure and Transparency as Ali suggested. Great post.

  7. Very good post and I’m with you on Disclaimer and being transparent.

    I do want to say that what I think this really bring to life is that mom bloggers take product and write about it but don’t think of themselves as businesses yet they want to be taken seriously. For me, when companies started approaching me I went out and formed an LLC and got liability insurance. It’s about protection, investment and knowing that if you will be reviewing products, taking free stuff, acting like you are something you need to protect yourself like you are as well. You can be squashed by a big company and is it worth it for a mommy blog to have that happen. I think this should make all of us raise our eyebrows and think about what we are doing, why we are blogging and what we will do with our blogs.

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