Monday, April 06, 2009

Marketing to Moms who Blog: What You Say May be Used Against You in a Court of Law

I'm reading: Marketing to Moms who Blog: What You Say May be Used Against You in a Court of LawTweet this!

Bloggy product reviews and sponsored conversations are a great way for companies to engage mommy bloggers and their readers. So many companies are reaching out to moms who blog; this is an exciting time for us, for moms who like to get in on the newest and latest in personal products, food, travel, fashion and technology and share our opinions online.

But after reading this post, I fear the Federal Trade Commission (FTC) is busting up our party. Mom, lawyer, blogger and lawyer who advises bloggers, Linsey Krolik wrote a post at the Silicon Valley Moms Blog about a facet of social media law that is of growing interest to the FTC.

She explained that the FTC is considering guidelines that "would hold not only companies, but individual bloggers, liable for false statements made in connection with product reviews."

I'm no attorney, heck, I'd don't even play one online, but it's clear that both bloggers and the companies that want to connect with them need to take a look at their potential liabilities. Most moms I know who make money off of their blogs fund their Starbucks habit or maybe even earn enough to send their kids to day camp. That's certainly not the kind of money worth losing the house for in the case of a lawsuit.

There are a few steps bloggers can take to reduce their liability. I do my blogging, freelance writing and consulting under a corporation I formed many years ago, Positive Impact, Inc. My product review blog has a disclaimer on the sidebar. I'm told these things might help, but it's wise reading up and consulting with a lawyer if you're concerned.

I realize there's a bit of a catch-22 there. If you make $500 a year off of your blog and consider blogging more of a hobby than a job, do you want to spend half of your income meeting with an attorney? Did product review blogging just get a little less fun?

And then there's the corporate aspect.

I realize that the companies offering products for review have their own bottom lines and legal responsibilities to look after, but is it fair for Big Corporate to ask a small independent blogger to shoulder a potentially large liability?

What if the blogger writes a review based on information provided by the company? Review products are typically accompanied by a fact sheet or two and bloggers may incorporate this information into a review. If these facts are later found to be more like wishful thinking, should a blogger be held liable spreading untruths?

And speaking of Big Corporate vs. Small Blogger, I was once offered the chance to host a fabulous giveaway for my readers just for posting a video a PR firm was trying to help go viral. I thought the video was pretty funny and the giveaway would have been a real treat, but the PR hack mentioned some documents I needed to review to seal the deal.

Those documents included a waiver releasing the company behind the brand mentioned in the video from any liability associated with me posting it on my blog.

Huh?

I couldn't imagine any harm that would come from showing the video on my blog, and the PR hack repeatedly reiterated how harmless the forms were as he encouraged me to sign off on them. I refused. I couldn't see any reason for a mom blogging from her kitchen to indemnify a multi-million dollar corporation, even if it meant giving her readers the chance to win a $100 gift card.

I mean, I like you guys; I'm thankful for my readers, but I'm not gonna risk the ranch (ranch house, really) for you.

I'm all for honest, thoughtful product reviews, or honest, funny reviews, but the liability and potential FTC crackdown concerns me.

How about you? Whether you are on the PR end or the corporate end, please share your thoughts in the comments.

Further reading: Advertisers brace for online viral marketing curbs in the Financial Times.
My musings on marketing to moms.

26 comments:

Naomi said...

Scary. I thought the worst was paying $7 to send a giveaway winner 2 cans of Pledge in the mail...that could definitely make me shy away from doing stuff in the future.

Classy Mommy said...

scary stuff. i've been hearing the rumblings of this over the last month. any idea when FTC actions might hit? i interviewed a laywer on Classy Mommy Live and we discussed that everyone really should have an LLC if your blog is a biz just for some form of protection as you suggested. keep us posted! thanks kim! colleen :)

Bonggamom said...

Thanks for alerting me to this issue! I'm far too trusting when it comes to stuff like this. I'm such a swag whore, my first instinct is to say yes to practically any company that contacts me. Fortunately it has been mostly reputable companies, but I have ignored requests from companies that are clearly only seeking publicity with no interest in participating or contributing to the blogger. Your post has alerted me to the fact that there's another category to watch out for!

And great disclaimer on your review blog as well; can I steal your idea or is that grounds for a lawsuit down the line? :)

BlondeMomBlog (Jamie) said...

How in the world will this be regulated, though? That is my question. It seems like money would be better well spent elsewhere!

Jen Singer said...

It's going to change mommy blogging forever. Those who have journalism or law backgrounds may be able to keep on reviewing products, but most mom bloggers will likely stop, fearing lawsuits.

It's a disappointment for marketers and publicity folks, for sure. But it's also going to put a stranglehold on some mom-to-mom conversations in the blogosphere. And that's a shame, because moms today turn to the Internet for much of their product research.

The big companies can survive a slap on the wrist from the FTC, but the average mom blogger can't.

Classy Mommy said...

scary stuff. i've been hearing the rumblings of this over the last month. any idea when FTC actions might hit? i interviewed a laywer on Classy Mommy Live and we discussed that everyone really should have an LLC if your blog is a biz just for some form of protection as you suggested. keep us posted! thanks kim! colleen :)

PunditMom said...

I am totally having a conversation with my hubby about this. We're both lawyers, but he's got an FTC/anti-trust specialty that I don't. I can't imagine this could take off, but my question is why is the FTC interested? If they really want truth in advertising, I'd like to see them start with the drug companies and their gazillion TV ads.

amy said...

Interesting and not surprising to me at all. Thanks for posting this. Ill have to check out the other links you mentioned. Will have to see what my father-in-law lawyer thinks about it all. Definitely something to keep a heads up on.

hollibobolli said...

After going through two lawsuits in the past 2 years (neither one was related to things I reviewed) and having my blog become an issue in both... I have become much, MUCH more wary. I never thought my journal would be used to build a case against me when it really mattered most.. but I don't think any of us thought that far in advance "way back when."

Excellent post.

Lindsay Lebresco (Graco) said...

We heard about this a month or so ago- it is concerning and certainly something to sit up and pay attention to. We really need to understand the true guidelines before we panic- they could be easy to adhere to and it may not be difficult to do your "due diligence."

The other thing to consider from a corporate angle is we (the company) could be held liable if a blogger happens to get a benefit out of a product that wasn't intended or wasn't cleared in claims. So if someone tests a facial cleanser say and it happened to completely clear up her acne and she blogs about that- both the company and she would be liable even though she was just being honest about her personal experience and the company never told her the product could/would do that.

It will be very interesting to watch this unfold...

Annie @ PhD in Parenting said...

Glad to be a Canadian...lalalalalala

Give me a break.

...the whole sue McDonalds for the hot coffee and sue the microwave company for not saying you can't put your cat in the microwave and now sue the mommy blogger for saying she liked a product that really isn't great litigious American system is way over the top.

OwenKayleigh said...

It think there is an area for concern with all of us Mom bloggers. But I hope the FTC is looking to stop scams. Such as the Acai berry scams. There are tons of blogs and ads that link to purchasing the item but all of the sites are driven by one company that has reported to continuously charge credit cards. Also I would assume we need to be careful of the language we use in a review to deflect any legal issues. Moms have a right to review products. Personally I trust Mom reviews above others. Thanks for the post and keep us updated as you learn more.

OwenKayleigh said...
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Sprite's Keeper said...

Very interesting. Luckily, the products I've reviewed have only been toys and a video. I have been contacted by a few facial cleanser Marketing execs (I guess I should stop putting pictures of myself up, huh?), but none of the reviews looked viable for a giveaway and I have no interest in reviewing a product for a company if my readers are not going to get anything more than a corporate sponsored thumbs up. Also makes me wonder how this will affect the corps wanting to put some face time in at BlogHer this year.

Linsey K / Krolik Legal said...

Thanks for the link back, Kim, and for raising this issue with your readers. Bloggers are great at letting their views be known, so please keep speaking up about your concerns and the reality of what product reviews are like for you. The FTC will likely be looking for input from the very people this will affect. The issue gets complex, as Lindsay from Graco indicated, so add your voice!

And, side note (and just as a very general notion), I agree that anyone who has a business should have some form of limited liability entity protection. It is an investment of money, but if you're serious about your business, you need to treat it like one. Keep finances separate, keep records, read agreements, incorporate.

Oh Canada! Is it really simpler there? My sister lives there and I am jealous at times :)

Michelle Smiles said...

Interesting and something I want to keep an eyeball (despite being a non-money earning blogger). But I wonder when exactly this would come under the interest of FTC. If a mom blogger is simply expressing an opinion of a product provided by a company, how is that more than free speech? Except for very Big Bloggers, the companies (at least those I've had experience with) don't pay for a review. The company provides a product (and perhaps another to be given away) and the blogger than writes what she thinks about that product. It is one step removed from my choosing to talk about any random item I like or dislike but I am not paid to express a particular opinion.

Regardless, I am curious to see how this plays out.

selfmademom said...

Of course, my not fun, lawyer husband just told me in regards to this, "well, then don't pimp out freebies on your blog, then." Well, that's not very fun!

Rock and Roll Mama said...

Kim,
Thanks for the heads up. It is so interesting (to put it mildly) the things the FTC chooses to get involved in. This has such a scope that I see the enforcement possibilities as negligible, but terrifying and serious enough to the average mom blogger that it would put a serious dent in the current review practices.
The irony is, people come to mom bloggers for unbiased, honest opinions. Why those need to be regulated is beyond me.

Jen Singer said...

hollibobolli -- what were the lawsuits about?

Susan Getgood said...

I posted some thoughts about potential FTC action on Marketing Roadmaps last night as well. Disclaimer: I am not a lawyer, not do I play one in the Internet. I have however testified -- long time ago -- at the FTC.

My gut is that the FTC guidelines will focus on the degree to which the blogger is an agent FOR the company versus simply a customer with an opinion.

Lisa said...

I use to sell lia sophia and we put a stop to some rules the FTC was trying to put into place that would have put most of us out of jobs. When it gets to that point, we'll have to all band together and start sending letters to the FTC (which is what we did for lia sophia).

meowmie said...

Oh my. I had no idea! I wonder what the ACCC here in Australia would think. I suspect the attempts at viral marketing would not go as well anyway (smaller market, for starters).

Hey, I only just found out you were no longer at Momformation. No idea that so many bloggers were gone. For that matter, I honestly can't work out who'd in the process of going and who's staying. Really glad I found your blog via Andrea's.

kristina said...

Kim, I'm catching up on my blog reading--so glad yours is one of my favorite blogs. This post is an example of why. Thanks for letting us all know about this.

TravelingMomWithTeens said...

Nice job, Kim. I know it sounds scary, but the reality is that a few good ethics around blogging would help us all. Full disclosure of our relationship with the company (a free product, free stay at a hotel, or actuall dollars paid) is important to let readers know where we're coming from.Once we get used to the idea of full disclosure, it won't seem so scary.

MelADramatic Mommy said...

This is interesting and a bit scary. I'm hoping to have my blog re-designed to include a review section. I wonder why it matters to the FTC whether the ordering process for in item I mention as a gift idea is really easy?

Christie-A Work In Progress said...

Wow! Just really makes you think, eh? Need to re-write some of the language on my review blog! Thanks for this information!