Legal Expert Questions FTC's New Blogger Rules

The Federal Trade Commission's recommendations that bloggers disclose freebies has drawn much controversy this week, with some commentators questioning whether such a governmental mandate is either necessary or appropriate. But another portion of the FTC's new guides to endorsements and testimonials might be trumped by a separate federal law, according to law professor Eric Goldman. The guides say that marketers who have deals with companies that hire bloggers to write reviews might be liable if the reviews contain unsubstantiated claims. For instance, if a marketer signs up with PayPerPost -- a company that pays bloggers to write reviews -- and a blogger says something misleading, the marketer might be on the hook for deceptive advertising. The FTC illustrated its point by discussing a scenario involving a skin care products company that participates in a blog advertising service. In the example, a skin care manufacturer requests that a blogger try a new lotion and review it. If the blogger does so and makes an unsubstantiated claim -- such as that the lotion cures eczema -- both the blogger and the advertiser could be liable for making misleading representations, according to the FTC. But, says Goldman, the Communications Decency Act specifies that users of interactive services are not responsible for material published by other content providers.