FTC vs. bloggers, cont’d

by Walter Olson on October 9, 2009

Excitable bloggers like us ought to calm down, because it’s not as if official crackdowns on the dispensing of freebies ever generate absurd results: FreebieDocsDontEatDocblogger White Coat just snapped that picture at the scientific assembly of the American College of Emergency Physicians. (The campaign against drug company freebies for doctors, of course, began with publicity over inducements that were a whole lot more sizable and focused than convention-hall refreshments, but appears to have quickly extended to de minimis courtesies as well).

Meanwhile, FTC officials are getting all huffy about supposed misunderstandings and misconceptions about their new guidelines. Per PRNewser, some blogs have mistakenly reported the applicable fines as ranging up to $11,000, which is an obsolete number and should in fact be $16,000. Besides which, the commission does not have the authority to impose such fines on its own authority — it has to take its target to court. (Feeling reassured yet?) And FTC assistant director Richard Cleland says the agency does not intend to go after bloggers for nondisclosure standing alone (as opposed, apparently, to nondisclosure in combination with claimed misrepresentation of the qualities of the books, movies, conferences or whatever is being promoted). The main targets of regulation, he stresses, are the publishers or others who dispense the freebies — who of course will have new incentives to protect themselves by controls on distribution, as did Schering-Plough in the sign above.

Something to look forward to, no doubt, in the exhibit hall at future conventions: “If you are a blogger or other Social Media user, please refrain from taking any of the free magazines, calendars or sun visors in this display…” (& welcome Glenn Reynolds/Instapundit readers)

P.S. Coyote:

Anyone who has been involved in NCAA recruiting can tell you the absurd results that flow from defining even tiny freebies as violations. For example, when I interview high school students for Princeton, I have to be careful not to buy them lunch or coffee on the off-chance they turn out to be athletes where such a purchase could trigger a recruiting violation.

And Patrick at Popehat identifies another sort of “endorsement” that might arguably be covered by the language of the guidelines: linking to other blogs, especially when done insincerely.

{ 3 trackbacks }

Shopfloor » Blog Archive » The FTC, Regulating Speech by Bloggers — A Horrible Plan
10.09.09 at 1:55 pm
Do LINKS Constitute A Violation Of Federal Trade Commission Regulations? | Popehat
10.09.09 at 8:27 pm
Breadth of FTC blogger regs
10.21.09 at 9:58 pm

{ 18 comments }

1 Todd Rogers 10.09.09 at 1:36 pm

I wonder how many meetings, memos, emails, phone calls, voicemails, strategy sessions, ad nauseam took place to generate that sign.

2 Billy Hollis 10.09.09 at 2:05 pm

Hey, I’m taking no chances. A wild turkey left a free feather on my carport and I did a Twitter post about it, so I figured I better report it.

3 ras 10.09.09 at 2:16 pm

A hat tip to you, Mr. Olson.

Er, on second thought, you’ll have to give it back as it would constitute an undeclared receipt of courtesy. Alternatively, I could charge you market rate.

4 Dean Wermer 10.09.09 at 2:18 pm

Aimed at advertisers – pretty much reveals the main point; in many respects the regulations can be seen as a pro-MSM, anti-blogger anti-competitive action, particularly if advertisers decide it’s not worth the hassle to continue supplying many smaller bloggers with free items to review (I’m assuming it will still be worth it for the advertisers to give more influential tastemakers in the blogosphere freebies). Query whether the “independent editorial responsibility” distinction (the basis for giving the MSM a pass) will stand up under legal scrutiny. After all, those independent editors are not outside third parties but work for the same media organization that is receving and benefits from the free merchandise (and frankly, the same media organization that may be receiving thousands if not millions of dollars in advertising from entities it may be reviewing). What if a blogger annointed his/her spouse as their independent editor, to read/review posts before published? Should the spouse not qualify as someone with “independent editorial responsibility” to the FTC? And if not, why? A spouse is not independent? But isn’t a spouse just as independent as the MSM editor who works for an organization receiving a financial benefit.

5 Ken 10.09.09 at 2:20 pm

“Don’t worry, citizens! This law gives us a vast amount of discretion, which you can trust us to use wisely!”

6 Jeffersonian 10.09.09 at 2:37 pm

Did Schering-Plough have any eye-candy hostesses at this confab that might be considered a benefit of some sort? Were doctors from Vermont, Massachusettes and Minnesota properly blinded to prevent this threat to civilization?

7 GregS 10.09.09 at 2:38 pm

This is insane.

8 Amy Alkon 10.09.09 at 2:55 pm

At the alternative weekly newspaper conference, several cartoonists usually have bowls of Hershey’s kisses or mini chocolates on their tables. So…if you’re a Vermont alt weekly and you eat one at next year’s conference, and you carry the cartoonist in your paper, you will liable for an $16K fine?

Oh, wait — it would be “publishers or others who dispense the freebies”? So, (and not saying she specifically is “guilty,” but just for example), Jen Sorenson, who does the syndicated comic “The Gay Girl Next Door,” would be liable for paying a $16K fine? (It gives new meaning to “when a kiss is not just a kiss” — as in, when it’s a government-sponsored ahem-reaming.”)

And then, if these laws will be selectively enforced, how can that be seen as fair? Not that that seems to be of any importance to these meddling governannies.

9 Fyrdoc 10.09.09 at 3:26 pm

Even better – the FTC still allows all of the ads discussing how wonderful (the unregulated and not scientifically supported) supplements are at treating migraines, GI distress, stress, erectile dysfunction etc as long as a disclaimer is put in small print at the bottom of the ad. Even better, the drug companies CAN advertise directly to the consumer, giving away whatever they want to whoever they want (as long as the recipient isn’t an MD, because that would corrupt the process).

10 Michael Kirsch, M.D 10.09.09 at 3:50 pm

Are physicians from Minnesota, VT and Masss allowed to smell the food? I don’t think the should be permitted to even gaze upon it, as this confers an intangible benefit, which could corrupt vulnerable physicians.

11 Mia 10.09.09 at 3:54 pm

Wow! I wonder if they’re going to cut out the practice of pharmaceutical salespeople bringing lunch and other goodies to the office staff at physicians’ offices? I used to work for a large doctor’s office and those guys and gals really used to put on the dog for us. They fed the whole staff – from secretaries to lab and x-ray techs to the nurses and docs – around 50 people. They brought lunch from some of the most favorite restaurants. They also regularly handed out freebies like pens and post-it notepads. The salespeople were always attractive and dressed in the finest businesswear. This one guy even used to bring us Italian from a local eatery and he would bring empty wine bottles with candles and checkered tablecloths, as well as a CD player with classical music.

I remember one of our doctors used to not partake as a kind of a protest against this practice. He thought it was awful that some of his patients could hardly afford both medicine and food, so he would sit in his office with his little brown bag lunch and cup of hot tea. It used to kind of make me feel bad to see him sitting there like that…but not bad enough to not partake of the feast.

12 Doug 10.09.09 at 3:54 pm

What the nanny state of Wisconsin was not mentioned? My wife practices here in WI and I understood the Wisconsin Medical Society voted to ban such freebies. Really, does anyone out side the govt or some special interest group believe that doctors would be swayed by a cappuccino or a fancy pen? Even by a model of part of the human body? A book? I remember going to her big medical conventions and finding little freebies like this as a matter of routine. Made it fun for me. My wife, and I suspect most docs, grew wearied of this stuff. We still have a large box of various pens at home from such places.

13 tekel 10.09.09 at 4:41 pm

it is nothing short of bribery for pharma or medical device companies to give ANYTHING to ANYONE in healthcare services who has discretion to recommend their products to patients. The federal government should ban giveaways in healthcare, and force compliance by ending medicare reimbursement for products from any company that violates the ban.

It’s also a travesty that pharma companies are allowed to spend money on direct-to-patient advertising. In a world where people are still regularly dying of tuberculosis, any product that requires a multi-million dollar ad campaign to generate demand shouldn’t qualify as Medicine.

That goes for shit like Nexium or Cymbalta just as much as it does for Viagara. I challenge anyone to make a case that the world would not be vastly improved if Pfizer could no longer use TV to push drugs to rich old white people.

14 Bill Alexander 10.09.09 at 6:27 pm

tekel, does that include giving them the time of day? Just curious.

15 Ed R. 10.09.09 at 7:10 pm

One would think that doctors (and nurses) aren’t swayed by pharma giveaways. In my experience, however, when advising me to take an OTC drug, doctors and nurses almost always name a particular brand rather than using the generic name. I’m not talking about drugs whose generic names the public is unfamiliar with, but widely-known drugs such as acetaminophen or pseudoephedrine.

16 Corky Boyd 10.09.09 at 11:10 pm

While you downplay the threat and acccept the premise it is aimed more at the advertiser, then why target bloggers in the first place. And if the FTC wants to require disclosure, why just bloggers and not newspapers, radio stations, TV networks?

I can tell you from working in the newspaper business for over 40 years (primarily on the business side) there are free lunches, cocktail receptions, free flights. In one case the district sales manager of a major cruise line offered me a cruise if I would accompany her (without my wife). I declined. General Motors used to give a special discount to news gathering employees.

How can the FTC see a threat from bloggers, most of whom have daily views under a thousand, and ignore newspapers with circulations of hundreds of thousands and cable shows in the milllions?

My personal belief is it is simply a way of keeping us under their thumb, just as the FCC will be doing to broadcasters when they shorten license periods from 8 years to 3 and require proof of compliance with vaguely worded requirements for community involvement, local outreach , etc.

As a lawyer you may not feel threatened by a lawsuit, but for some gamer with a small audience to hire a lawyer to defend himself in federal court, means a retainer in the thousands. And a lot more to appear in court.

I personally am going contact my congressman and senators to pressure the FTC to rescind this. Others should do the same.

17 Tom Perkins 10.10.09 at 9:29 am

“TV to push drugs to rich old white people.”

Except those people aren’t all rich, aren’t all old, and aren’t all white–and their money also funds every other bit of research and charity the pharma companies do.

What, you think government will fund it all? Yeah, nothing to worry about with that–medical decisions being made for political instead of personal and medical reasons.

18 sch 10.10.09 at 7:09 pm

Corky, your complaint to the congress critter will be much more likely
to be heard if associated with a PACT check for $5000 or so and the
promise of more to follow on a periodic basis. Politicians don’t seem
to think that limits on contributions should apply to them. In my state
legislators have an onerous limit of $250/day per lobbyist in how
much a legislator can receive, and very little limitation on how the
resultant contributions can be used. A local mayor has reportedly
been observed to visit ‘bingo halls’ and after being directed to certain
machines gotten payouts of $20k and $50k on separate occasions
after brief play.

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