Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘FTC endorsement rules’

Update: FDA backs off raw oyster ban

Following a huge outcry in Louisiana and elsewhere (see Oct. 28; Slashfood, Washington Times, Ryan Young/CEI), the agency will reconsider the rule. The uber-nannyish Center for Science in the Public Interest was dismayed at the delay [BayouBuzz], while the New Orleans publication Gambit, which calls the episode “a glaring example of bureaucratic overkill,” warns that after finishing further study the FDA “could still return with its faulty reasoning.” Nancy Leson at the Seattle Times passes on word from a Northwest shellfish official: “We were told by FDA officials that initially, they were planning to mandate post-harvest treatment of all oysters, and at the last minute they decided to just stick to Gulf oysters — for now.” And ubiquitous food-poisoning lawyer Bill Marler, whose publicity juggernaut rolls on* (recent Seattle Times profile — “I represent poisoned little children against giant corporations”), feels like he’s been wasting a fortune:

…let me make clear that I dumped a lot of “change” into the Democratic change wagon – I have given or raised millions of dollars for Democratic candidates over the last several years. My goal was to put people in office that did good public policy. Well, I guess I needed to wake up literally and figuratively. … Now, the FDA runs and hides from the Oyster industry. … Democratic candidates – do not bother calling, this “change” machine is out of order.

*Marketing disclosure for the FTC’s benefit: when I spoke at the recent AEI food safety panel an employee of one of Marler’s journalistic enterprises presented me with one of his promotional t-shirts.

Filed under: , , , ,

October 22 roundup

  • Unsafe at any read: new Ralph Nader novel panned by Chris Hayes, Washington editor of The Nation [Barnes and Noble Review via Suderman, Reason]
  • Microsoft says “most, if not all” customer data from T-Mobile Sidekick smartphones has been recovered, but class action lawyers say they’re undeterred [Seattle P-I]
  • Sue them all and sort things out later? Lawsuit over Air France Airbus crash off coast of Brazil names long list of aerospace suppliers as defendants [Reuters]
  • “No cash for this clunker”: opposition mounts to proposal for Massachusetts public law school [Boston Herald editorial via Legal Blog Watch, earlier link roundup at Point of Law]
  • Ralph Lauren experiences Streisand Effect over skinny-model nastygram [Althouse, earlier]
  • High-profile L.A. plaintiff’s lawyer Walter Lack speaks under questioning about role in Nicaraguan banana-worker suit against Dole [Recorder, earlier, background] And: “Dole on a Roll: Court Declines to Enforce $97M Judgment” [WSJ Law Blog, Bloomberg]
  • Miller-Jenkins lesbian custody case, much meddled in by conservative religious groups, recalls the ways divorced dads get cut out of their kids’ lives [Glenn Sacks/Ned Holstein via Amy Alkon, background]
  • Daniel Kalder speculates on why the New York Times editorially “purred with approval” of the new FTC blogger regulations in such an “impressively superficial” way [Guardian Books Blog]. More on FTC’s semi-backtracking on the controversy: Media Bistro “Galleycat”, Publisher’s Weekly, Galleysmith. And having been hoping for ages to get a link some day from blogging legend Jason Kottke, this one will go in the souvenir file [Kottke.org]

Filed under: , , , , , , , , , ,

“Where did you get that keychain?”

[Bumped Monday a.m. with added links for readers who missed it on Friday]

My new article on the Federal Trade Commission’s very bad new rules on endorsements and social media is now up at City Journal.

Meanwhile, on Wednesday, the FTC held a conference call for reporters to dismiss concerns as unfounded. “They are not rules and regulations, and they don’t have the force of law,” said Mary Engle, associate director for advertising practices at the FTC’s Bureau of Consumer Protection — which may be narrowly true but is hollow reassurance at best, since the guidelines plainly are meant to signal where the commission intends to aim its future enforcement efforts, and since not all bloggers will be willing to defy the guidelines on the assumption that courts will refuse to go along with the FTC’s interpretations.

“We are not going to be patrolling the blogosphere,” Engle also claimed. “We are not planning on investigating individual bloggers.” And: “We’re not interested in playing gotcha in the gray areas.” And yet the guidelines are again and again written in such a way as to reserve the Commission’s discretion to do any and all of these things. Ann Althouse, as before, is rightly scornful:

Oh, good. You’re not planning…

I’m so relieved.

“We’re not interested in playing gotcha in the gray areas.”

Not yet. But once the law is on the books, will you never feel tempted? Nothing will motivate you to venture into the gray?

Of course the FTC, like other regulatory agencies, is frequently drawn into enforcement not because it has been patrolling some area as such, but because some interested party (a competitor, a disgruntled employee, an ideological critic, a litigation opponent) calls the attention of enforcement staff (or the press) to the purported violation. Is the FTC really saying, “Yes, we’ve declared blogging in such-and-such a manner to be illegal, but we’re planning to look the other way?”

More on the rules: New York Times (reactions in world of online fashion journalism); Dear Author (new rules “will be rife with abuse and misuse and uneven application”); David Johnson/Digital Media Lawyer; BNA TechLaw (endorsing agency reassurances); Robert Siegel, Mind Your Own Damn Business Politics (guidelines “might bite traditional media after all”).

P.S. Randall Rothenberg of the Interactive Advertising Bureau, a trade group, notes that in recent days “the FTC has been furiously backtracking about their implications, in an apparent attempt to soothe the blogosphere”, but calls the reassurances “disingenuous”. More: PaidContent.org (IAB considers the rules constitutionally dubious under First Amendment); Ars Technica. And some more new links:

  • According to one report from a children’s literature conference, the FTC’s Engle says Amazon bookstore arrangements must be re-disclosed anew with each linked post, but — in a seeming departure from what colleague Cleland said a week ago — otherwise “independent” book reviewers need not disclose free review copies [A Chair, a Fireplace, and a Tea Cozy]
  • Gordon Crovitz in Monday’s WSJ (FTC backtracking in face of reaction; “Do employees of a company have to disclose the fact of their employment every time they comment on its products through their personal Facebook accounts?”)

Filed under: , ,

Breadth of FTC blogger regs

“PatHMV”, in the Volokh comments:

…make no mistake, these regulations are broad. It’s not just that Joe has to say “I got a free bottle of detergent to review,” when he reviews that detergent. No, the FTC will have the authority to fine Joe if P&G [Procter & Gamble] periodically sends him free bottles of detergent or whatever and he ever writes about ANYTHING that P&G produces, even if they didn’t actually give him that particular product for free and didn’t even ask him to write that specific review. How much free stuff before that obligation kicks in? The regulations don’t tell us; it’s up to a “case-by-case determination” by FTC officials.

I don’t know much about detergent-blogging, so let’s substitute a couple of fact patterns more relevant to news, opinion and public affairs blogging. It’s been much asserted of late that it’s no particular burden to disclose when mentioning a newly published book or quoting from a newsworthy speech that the publisher sent you a review copy or the conference-giver let you into the hall on a press pass or its equivalent. But the regulations clearly contemplate broader disclosures than that. At some point, acceptance of such benefits will be deemed to create a relationship that must be disclosed even on other occasions, when, say, you mention an author or a nonprofit institution in a different context six months later.

An editorial in today’s New York Times, despite a bit of concessionary fluff about not wanting “to hamstring the ability of bloggers and twitterers to report and comment about the world,” enthusiastically endorses the new rules. It says not one word about the dangers of overbreadth, de minimis triviality, chilling effects, or selective enforcement. Nor (unlike the L.A. Times’s far more nuanced editorial) does it inform readers that the FTC is proposing in some respects to regulate social media more stringently than traditional media outlets such as the Times itself. Here’s the analysis from Citizen Media Law:

As noted above, a particularly remarkable feature of the “material connections” disclosure requirement is that it apparently does not apply to traditional media to the same extent that it does to online media.

The FTC’s justifications for this distinction are not entirely clear, but they appear to rely on two assumptions. First, the FTC assumes that traditional media exercises “independent editorial responsibility” in writing reviews and that bloggers and social media users may not. The FTC even suggests that reviews published on “an Internet news website with independent editorial responsibility” would be treated like those published in a traditional brick-and-mortar periodical. Guides, at 47 n.101 (emphasis added). Second, the FTC seems to assume that freebies for traditional news reporters are “reasonably expected by the audience,” whereas freebies for bloggers and influential Twitterers are not. These assumptions may be justified when the comparison is between sleazy buzz marketers and much of the traditional press, but they’re less convincing when the comparison is between serious online commentators and the offline press.

Earlier coverage here and here (& welcome Glenn Reynolds/Instapundit, Jonathan Adler/Volokh readers).

World-turned-upside-down alert: Daily Kos is making sense on the topic of how book reviewing works.

And: Daniel Kalder of the Guardian Books Blog speculates on why the NY Times’ editorial “purred with approval” of the new regs in such an “impressively superficial” way.

Filed under: ,

FTC vs. bloggers, cont’d

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.

Filed under: , ,

Required FTC blogger disclosure

Publishers sometimes send me books in hopes I’ll review or at least mention them. I occasionally attend free advance screenings of new movies (typically law-related documentaries) that filmmakers hope I’ll write about. This site has an Amazon affiliate store which has from time to time provided me with commissions after readers click links and proceed to purchase items, though it’s been almost entirely inactive for years. I get invited to attend the odd institutional banquet whose hosts sometimes give away a free book or paperweight along with the hotel meal. I’ve been sent “cause” T-shirts and law firm/support service provider promotional kits over the years, pretty much a waste of effort since I don’t much care for wearing such T-shirts and am not exactly famed for posts that sing the praises of law firms or their service providers.

Under new Federal Trade Commission guidelines in the works for some time, I could apparently get in trouble for not disclosing these and similarly exciting things. In addition, the commission’s scrutiny will extend to areas less relevant to this site, such as targeted Google advertising and results-not-typical testimonials.

Robert Ambrogi at Legal Blog Watch finds it hard to see why the blogosphere has raised such a big fuss about these rules. After all, the rules (to be precise, “guidelines” backed by government lawyers with relevant enforcement powers) make clear that nondisclosure of a single minor freebie will not in itself suffice to trigger liability but instead will be counted “among several factors to be weighed” in evaluating the continuum of behavior by individuals engaging in social media (it seems the rules also apply to Twitter, Facebook, and guest appearances on talk shows, to name a few). FTC enforcers will engage in their own fact-specific, and inevitably subjective, balancing before deciding whether to press for fines or other penalties: in other words, instead of knowing whether you’re legally vulnerable or not, you get to guess.
StackofBooks
Like most authors I know, I wind up donating most review copies I receive to local library sales or other charities. (As Ann Althouse and Cory Doctorow both hint, the accumulation of review copies for disposal quickly becomes more of a burden than otherwise, which is why I spend much more time trying politely to talk publishers out of sending me copies than trying to talk them into it.) But in an extraordinary interview that should be read in its entirety, the FTC’s point man on the rules, Richard Cleland, surreally suggests bloggers should instead return review copies to the publishers — who don’t want them back! — after taking a look.

Among interesting disclosure posts by well-known bloggers: Tyler Cowen/Marginal Revolution, Virginia Postrel/DeepGlamour, Martin Schwimmer/Trademark Blog. Other notable reactions: Jack Shafer, Slate (“The FTC’s mad power grab. … preposterous … The guidelines have to be read to be believed.” ); Patrick at Popehat (“Next on the FTC agenda: fines for hotlinking and failure to hat tip … Yes, I believe in the slippery slope.”); Jeff Jarvis, Amy Alkon, Dan Gillmor (“you get the sense of a government-gone-wild travesty…unworkable in practice”), HIPAA Blog (“unconstitutional”), Washington Examiner (editorial: “No self-respecting journalists should lend their endorsement to [the FTC’s planned Dec. 1-2 workshop on journalism], and neither should any professional journalism organization.”)

Finally, for the last word, Ann Althouse:

The most absurd part of it is the way the FTC is trying to make it okay by assuring us that they will be selective in deciding which writers on the internet to pursue. That is, they’ve deliberately made a grotesquely overbroad rule, enough to sweep so many of us into technical violations, but we’re supposed to feel soothed by the knowledge that government agents will decide who among us gets fined. No, no, no. Overbreadth itself is a problem. And so is selective enforcement.

(& welcome readers from Instapundit, Ron Coleman (who points out that he was on this issue earlier than any of us), ShopFloor, Dave Zincavage, Jonathan Adler/Volokh, Megan MacArdle/The Atlantic, Darleen Click/Protein Wisdom, Declan McCullagh/CBS (with some very kind words), Mickey Kaus (scroll to P.S. “I’d link to…”)). And (10/21): Jason Kottke’s Kottke.org, K2/DaddyTypes.

[Followup posts here and here.]

Filed under: , , ,

A word for Hosting Matters

Hosting Matters offerNo, we haven’t begun accepting advertising, but we figured we’d put in a good word for Hosting Matters, whose hosting services we’ve been using for years and whose support staff over that time have helped extricate us from more than one baffling technical impasse arising from software oddities, DOS attacks and so forth. If you follow the linked graphic, or just click here, you’ll find the details of a promotion they’re doing for an “unmetered” hosting plan (not quite the same as “unlimited”, as they explain) which provides a lot of availability at a low price for those who manage growing websites. If you sign up through us, we also get some sort of credit on our own hosting bill, which I suppose puts this in the category of blog posts that the Federal Trade Commission is so keen on regulating.

Filed under: ,

Around the web, July 3

  • Transportation Security Administration detained comic book artist based on art he was carrying with him [Popehat]
  • More unease over Federal Trade Commission move to regulate bloggers’ freebies [Citizen Media Law, CEI “Open Market”, earlier] “I could care less that Milly the Yarn Spinner at millysworldofyarn.com is getting free samples of yarn to review on her blog.” [John Dvorak, PC Mag]
  • “Judge Calls Frivolous Suits Against Attorneys a ‘Disturbing Trend'” [NYLJ; Staten Island, N.Y.]
  • Sad news: Excellent online music service Pandora, unable to negotiate rights affordably, shuts down for customers outside the U.S. [Prefixmag, earlier]
  • Joseph Stiglitz says the UN has a key role to play in “reforming the global financial and economic system”, which “is a bad idea. It is a very bad idea.” [Tyler Cowen]
  • All assemble for trial: more installments in White Coat’s saga of his malpractice case [Emergency Physicians Monthly, parts seven and eight]
  • Netherlands: site gets sued because of the way Google indexed it [TheNextWeb.com]
  • Phone company faces grievance after disallowing workers’ metal facial jewelry as electricity-conducting risk [eight years ago on Overlawyered]

Filed under: , , , , ,

Update: FTC moves ahead with blog regulation

The Federal Trade Commission seems particularly interested in checking up after blogs that participate in affiliate programs like Amazon’s while making favorable mention of books and other products sold there. [Morrissey, “Hot Air”; Elizabeth Jacobson, CEI “Open Market”] “Do we seriously expect people to hire lawyers before launching a mommy blog? Apparently so.” [James Joyner via Instapundit; Ron Coleman] Earlier here and here.

More: Patrick at Popehat is feeling commercial.

Filed under: ,

“Considering the explosion of new media, regulation is inevitable”

Phillips Givens’ IP Law 101 has more on the Federal Trade Commission’s proposed extension of liability to situations where bloggers or others in social media fail to disclose the receipt of freebie services (such as entertainment or software) or write insincerely favorable posts about the experience. Earlier here. More: Jeff Winkler, Reason “Hit and Run”.

P.S.: Doesn’t sound as if bloggers have much to worry about, though, if the topics on which they provide favorable coverage are of a more political sort.

Filed under: , , ,