This Wine Blog is More Likely To Deceive You

Deceive “A (wine) blogger could receive (wine) merchandise from a marketer with a
request to review it, but with no compensation paid other than the
value of the product itself. In this situation, whether or not any
positive statement the (wine) blogger posts would be deemed an “endorsement”
within the meaning of the Guides would depend on, among other things,
the value of that (wine) product, and on whether the (wine) blogger routinely
receives such requests. If that (wine) blogger frequently receives products
from (wine)manufacturers because he or she is known to have wide readership
within a particular (wine drinking) demographic group that is the (wine) manufacturers’ target
market, the (wine) blogger’s statements are likely to be deemed to be
“endorsements,” —parenthetical statements added for emphasis.
FROM THE FEDERAL TRADE COMMISSIONS NEW "Guides Concerning the Use of Endorsements and Testimonials in Advertising"

Basically, the FTC says that under the circumstances outlined above, the blogger in question must reveal that the bottle of wine they reviewed was provided to them free—or they could face a fine of $11,000.

Now I have no problem with wine bloggers revealing that the wine or wines they reviewed came as free "press samples". Nor do I have a problem if they don't reveal it. And frankly I don't care that the FTC wants to mandate that this kind of disclosure occur when bloggers review wines.

However, here's where I start to have a real problem with the FTC's new guidelines on what kind of disclosure is required of bloggers who review products: THE FTC WILL NOT BE HOLDING "TRADITIONAL MEDIA" TO THE SAME DISCLOSURE STANDARDS!!

To wit:

"In general, under usual circumstances, the
Commission does not consider reviews published in traditional media (i.e., where a newspaper,
magazine, or television or radio station with independent editorial responsibility assigns an
employee to review various products or services as part of his or her official duties, and then
publishes those reviews) to be sponsored advertising messages. Accordingly, such reviews are
not "endorsements" within the meaning of the Guides. Under these circumstances, the
Commission believes, knowing whether the media entity that published the review paid for the
item in question would not affect the weight consumers give to the reviewer's statements."

Let me put this in plainer words. If a publisher sends me (a wine blogger) a copy of a new book about the wines of Bolivia and I review it positively I must disclose the book was given to me or face a fine of $11,000. If a reporter at the Wine Spectator (traditional media) receives a free copy of "The Wines of Bolivia" and reviews it positively, they need not disclose they received it free from the publisher. Put another way, if Alder Yarrow or Dr. Vino respond in the affirmative to my email to them offering a bottle of press sample of Mayo Family Winery's 2006 Reserve Zinfandel with a request (though not a demand) that they review it, they must disclose they received the sample free of charge when they do review it—good or bad review. If I call Steve Heimoff of the Wine Enthusiast and make the same offer and he accepts, he (and the editors at The Wine Enthusiast) need not disclose they received the press sample free.

Why the double standard between "Bloggers" and "Traditional Media"?

Apparently the FTC believes that the acceptance of free wine or books by media that possesses an "Independent editorial responsibility" should give consumers the confidence they need to trust the resulting reviews are not bought and paid for. 

On the other hand, the FTC has determined that because bloggers have no "Independent editorial policy" or any "Official Duties" related to an editorial policy, consumers can not have the same confidence that they are not bought and paid for. Therefore, bloggers ought to be held to a different set of rules.

Essentially,  what the FTC is saying is that if your blog is not your primary source of income, if your writing on your blog is not your profession, if your livelihood does not depend on attracting readers to your blog, if an "independent editorial responsibility" does not define your moneymaking activities, then you can't be expected to have the same ethical standards as those who do possess these qualities and your readers need to be protected from your more likely ethical lapses by the requirement that you disclose all material connections between you and the products or industries you write about.

Should I be offended by the FTC's presumption that since I don't make a living off this blog I am more likely to deceive its readers by being on the take than the Wine Spectator or Wine Enthusiast or Wine & Spirits, which are moneymaking ventures?

I guess that depends on whether or not I believe that, in general, those with little or nothing to lose are more likely to engage in unethical or immoral actions and society (consumers) need to be protected from this sort of suspect class of people.

The fact is, I am offended by the assumptions built into the FTC's new guidelines on commercial endorsements. I'm offended because the FTC has chosen to codify this suspect assumption about the morals and ethics of people who write, but don't get paid to do so. It codifies an extraordinarily cynical view of human nature that is probably the exception and not the rule. And it is a codification of cynicism that at the same time slaps me and my wine blogging colleagues across the face for simply taking advantage of a new publishing medium to offer our views.

The FTC would have been on much firmer ground has they simply issued rules that provided a fine for anyone, blogger or traditional media, that takes money in exchange for a positive review of a product and does not disclose it. This kind of rule would have punished the unethical transgressor—rather than assume likelihood of transgression.

46 Responses

  1. Dave Van de Walle - October 6, 2009

    Wow, Tom, you really found some thorny issues with the FTC stuff. I am firmly on your side of the coin.
    I used to get Wine Enthusiast. I would read it, look at the labels in the back, and see that there were some interesting things about “sponsored placement.” Or whatever.
    Leave it to the FTC to (1) muck everything up and (2) ensure that people offshore their business.

  2. Tim - October 6, 2009

    Thanks for this article, Tom. You’ve expressed my sentiments exactly. I have no problem with full disclosure, but that rule should apply to ALL publishers, not just those who use “new media” as their medium.

  3. larry schaffer - October 6, 2009

    Quick question – and I am not a lawyer – but are there differences in how the FTC generally treats blogs and internet websites with regards to slandererous talk vs. traditional media?
    Have there been any cases you are aware of where a website or blog has been taken to court for what they have said?
    We know that many in the ‘traditional media’ have been quite scrutinized for their actions, but what about those on the web?
    I ask these questions not to stir things up, but to simply understand the bigger pictre issue here . . .

  4. Tish - October 6, 2009

    You write: “Should I be offended by the FTC’s presumption that since I don’t make a living off this blog I am more likely to deceive its readers by being on the take than the Wine Spectator or Wine Enthusiast or Wine & Spirits, which are moneymaking ventures?”
    Absolutely, YES! Great post, Tom.

  5. Jo Diaz - October 6, 2009

    Tom, I’m with you all the way on this one. Let’s see:
    1) When I’m blogging, I’m not paid by anyone, clients or non-clients, unless you go to my about page, where there’s full disclosure, including the images that I’m using on my site… I own the rights, or I buy the rights, clients who don’t pay me for social media, plus those that do:
    2) If I’m worth $125 an hour, and get a couple of $12 bottles of wine ($24), and it takes me two hours to write about the wine and the brand that delivered it to my doorstep, which involves processing as a “oncoming,” tasting it, taking notes, doing some research on the brand, then comes the four-step writing process (writing, reading, editing – rewriting and editing ad infinitum, which I do almost obsessively) and I like the wine, so I write about it… I just lost money… $226 (my fee for 2 hours w/clients) – $24 (two bottles of wine) = $226 dollars… and the FTC is worried about me being some powerful influence?
    Hum… I’m ready for congressional hearings when you are.

  6. Jo Diaz - October 6, 2009

    That would be “incoming” – and this went through copious rewrites and edits… No perfection in life…

  7. Tom Wark - October 6, 2009

    I honestly don’t care what kind of disclosure requirements are set down for bloggers. What I’m really opposed to are the assumptions that are ingrained in the new FTC guidelines that heap suspicion on people who write for pleasure, rather than for profit.
    It’s extraordinarily cynical.

  8. Steve Raye - October 6, 2009

    Tom: great summary insight. Obviously it affects the wine industry, but I suspect the more widely read…and funded…consumer blogs e.g. Perez Hilton et al. have more at risk. Will be interesting to see how this plays out in public debate.

  9. Charlie Olken - October 6, 2009

    Tom et al-
    I guess I qualify as traditional media, and I absolutely agree with you that all media should be subject to the same rules of disclosure.

  10. Thomas Pellechia - October 6, 2009

    I have a feeling that this ruling did not come out of thin air, that there must have been enough transgressions to make it come about, and that those transgressions are likely associated with high-profile people who do command attention and need to be watched carefully.
    Either that, or the print media lobby is coordinated beyond what I would have thought possible 😉

  11. Michael Wangbickler - October 6, 2009

    I agree with you 100%. The FTC will, however, find it difficult to actually enforce these rules, considering the enormous proliferation of blogs. I expect there will be a revision within a few years to clarify

  12. Tom Wark - October 6, 2009

    You are correct, Michael. No wine blogger or traditional wine media will get fined for not disclosing they received a press sample, nor should they.
    But imagine if a wine blogger did get fined for not disclosing. You couldn’t buy that kind of publicity. Plus, you might just have lawyers knocking at your door and lining up to defend you in court.

  13. Erol Senel - October 6, 2009

    I have actually just emailed the FTC and turn myself in (jk, I wish someone would “give” me wine to review). You are correct though, the page would explode with hits.
    It should be journalistic courtesy to disclose that fact anyhow or not write about the wine to begin with.
    Cool piece Tom.

  14. Joe Herrig - October 6, 2009

    Great commentary, Tom.
    I think this law has so many loopholes in it that will- as Michael said- lead to this thing being revised.
    For example, let’s say you get a paid speaking engagement because enough people like what you write on your blog. While blogging is not the primary source of income, it has (indirectly) contributed to your livelihood. Is that situation specified in the legalese? Anyway, I see one of two things coming of this:
    1) a lot of money wasted in revisions and legal battles
    2) Nothing, because the the blogosphere is too difficult to regulate.
    My first time checking out your site…great work!

  15. Tom Wark - October 6, 2009

    Thanks for stopping by FERMENTATION.
    Actually this isn’t so much a new law as it is a new set of guidelines that interpret older laws. But that’s beside the point.
    Your example of a speaking gig is interesting. These new guidelines apply primarily to “endorsements” that appear in media. The FTC would have to have a LOT of time on their hands to stretch their already arcane interpretations and guides to go after a paid speaker.
    Thanks again for stopping by.

  16. Ed Thralls - October 6, 2009

    Thanks, Tom, for carrying the torch and speaking so clearly the disdain for this double-standard. There seems to be so much room for interpretation, it’s almost silly to go through the effort to make the ruling in the first place. For example, taking Joe’s line of thinking further, does this too apply to all other social media outlets beyond just the blog? I can make the same statements on Facebook, Twitter or wherever… so, is the Guide clear as to the “voice” (i.e. the blogger) of the endorsement or the “platform” that will determine compliance?

  17. Mark Fish - October 6, 2009

    Since the dawn of radio, our government has a long tradition of regulating the electronic media. While we wish the First Amendment applied to electronic media, there are precedents for this. Print media will never be regulated like this. Frankly I am surprised that the FCC did not step in first. I think this is a just the first step in the regulation process. The Wild West days of the Internet are coming to an end. If bloggers had organized and self-regulated, to keep the government out, say like the MPPDA/MPAA did to regulate the movie industry, the FTC would not have taken these steps. More websites and bloggers will be hit soon with regulations already on the books, like stating clear privacy policies, ownership and legal contact information, etc. This is just the beginning.

  18. Thomas Pellechia - October 6, 2009

    I’m afraid that Mark Fish is correct. I’m also glad that I don’t do wine reviews.

  19. Tom Wark - October 6, 2009

    Turns out the FTC considers radio and TV to be the same as newspapers on this issue. In fact, a money-making or rather “For Profit” online newssite is also not covered by the rules they’ve set down for “bloggers” and “consumer generated media”.

  20. Glen F. - October 6, 2009

    While I have the highest respect for your opinions and this blog, I respectfully disagree. Traditional and internet media are very different so I don’t see why they should be regulated in the same way. I agree with Thomas above, government bodies are usually more reactive than proactive. My guess is this means there have been lots of complaints again some segment of bloggers (probably not wine bloggers) which prompted this decision.

  21. Tom Wark - October 6, 2009

    It appears that the distinction the FCC is making is not one based only one whether it is traditional or internet media. Rather, the distinction is based on whether the media in question is a distinctly FOR PROFIT operation or just a person who might be reporting or writing informally. The FCC notes that some Online media would be exempt from these new guidelines.

  22. The Wine Commonsewer - October 6, 2009

    More evidence that the FCC should be dismantled. If it ever had any relevance, that day is long past.

  23. The Wine Commonsewer - October 6, 2009

    …S/B FTC, sorry (icepick fingers)

  24. Tom Wark - October 6, 2009

    Despite this unfortunate set of Guidelines from the FTC, it she noted that it was the FTC that was the first (only?) government agency that endorsed the direct shipping of wine as both safe and a benefit to consumers:

  25. Thomas Pellechia - October 6, 2009

    “Despite this unfortunate set of Guidelines from the FTC, it she noted that it was the FTC that was the first (only?) government agency that endorsed the direct shipping of wine as both safe and a benefit to consumers:”
    Ah yes, that nasty little interruption of separate interests always has a way of upsetting the black and white of any subject.
    I stick by the idea that the FTC is likely acting from a base of specific incidences of abuse.

  26. Glen F. - October 6, 2009

    That seems like a very strange distinction.

  27. Jeff - October 6, 2009

    Hi Tom,
    Until today, I considered blog “endorsements” to be the opinion of the author regardless of whether any “free samples” may have been exchanged. As a reader, I took those “endorsements” with a grain of salt.
    With this ruling, the FTC is telling me I should give more weight to an internet “endorsement” where “disclosure” has been made than if that same “endorsement” was encountered via traditional media. Bloggers have now surpassed traditional media in terms of credibility and ability to influence my decisions. After all, I now have the FTC and United States Government protecting me.

  28. Benito - October 6, 2009

    Hmmmmm… Since many newspapers, magazines, and other old media are losing money these days, perhaps I should start printing out my blog once a week and leaving it on the driveways of my neighbors, tucked underneath the “Smart Shopper” free newspaper. Suddenly I’m a failing print business with a web presence rather than a pesky upstart blogger.

  29. Tom Wark - October 6, 2009

    That is indeed one way of looking at it. But in order for the FCC to take bloggers to those heights, they first had to make a distinction built on the idea that anyone writing for free, or not for a “legitimate news or reporting organization” was less trustworthy.

  30. Arthur - October 6, 2009

    what is the litmus test for “Independent editorial responsibility”?

  31. Dylan - October 6, 2009

    It’s a double standard, but it’s not one that’s making my head hit the ceiling. If anything, this encourages the transparency everyone in blogging (wine and otherwise) wishes to uphold. So, let us be the rule and not the exception, even if that rule happened to be forced.

  32. Tom Wark - October 6, 2009

    I’m pretty sure that it implies the existence of a larger organization that includes editorial control once removed from the writer that that eventually does the review. This in turn implies some sort of larger, for profit, organization, something that most bloggers do not belong to. In addition, it implies that whatever free sample is sent, that it is going to the “organization”, who passes it on to the writer.
    Pretty sketchy assumptions if you ask me.

  33. Tom Wark - October 6, 2009

    I don’t mind the rule. Or even following it. I mind the assumptions built into its issuance.

  34. Thomas Pellechia - October 6, 2009

    “I don’t mind the rule. Or even following it. I mind the assumptions built into its issuance.”
    Huh? You would rather the assumptions and not the rule be changed. The FTC changes the assumptions but keeps the rules and that makes you happy? That makes no sense, Tom.
    The rules are the rules based on the assumptions–or maybe, as I have alluded to more than once, based on practical response to some practical happenings or complaints.
    May I suggest that someone do a journalistic investigation and find out why the FTC came up with this ruling. That way, we can discuss based on facts rather than on “assumptions.”

  35. The Wine Mule - October 6, 2009

    Does anybody remember the scene in Mondovino when Lassiter asks James Suckling whether giving a better review of his landlord’s wine might get him a reduction in his rent?
    I think the FTC ruling is kinda silly. Shilling is shilling, whether done by amateurs or pros. I also agree it is probably unenforceable.
    And I can see this getting completely out of hand: If I go to a tasting and don’t pay, does that mean I’ve been “given” the wine?

  36. Charlie Olken - October 7, 2009

    What I dont get in all this palaver is the problem with transparency. Stop complaining about, folks, and start offering it.
    Begin by suggesting what the new transparency should look like.
    How about this–
    –Revealing whether the wine you are writing about has been supplied to you by the winery or was purchased by you.
    –Revealing whether you tasted the wine blind or not, and, if blind, what else was tasted with it?
    –Revealing whether you have accepted any form of gratuity more valuable than a modest meal (no one gets bought for a cheese sandwich). I can tell you that I went to dinner last night with about ten journalists and a winery owner from Argentina. I got a belly ache and an nice new belt, size 50. I think it can be cut down.
    Feel free to add or subtract from this list, but let’s talk about what standards we expect of ourselves. I guarantee you that we will be harder on ourselves than the FTC ever thought of being.

  37. Thomas Pellechia - October 7, 2009

    For a more descriptive narrative on this subject, go to Lew Purdue’s investigative site.

  38. The Wine Mule - October 7, 2009

    Thanks for the link, Tom. Purdue seems thoughtful on the subject, and in any event, it is hard to disagree with his claim that transparency is best. (I wish there was somebody calling out the general news media re: their coziness with their subjects, but that’s a separate matter…)

  39. Charlie Olken - October 7, 2009

    Mule–Have you seen Parker being called out with regularity or A. Dias Blue getting called out? It is happening–and it should.
    You seem to like transparency. You can start by calling for a set of standards for all wine media and stating them if you disagree with those I have suggested above.
    The rules for transparency should apply equally and ratably to all media. Full stop.

  40. Thomas Pellechia - October 7, 2009

    My reason for pointing everyone to Purdue’s site is that he delves into the why, how, and method directly with the people involved or through others who have talked with the people involved. That’s far different from speculating and making assumptions about what the FTC did and how it might affect wine bloggers.
    After looking at what the people involved said, it’s clear that all this talk about wine bloggers being held accountable for going to tastings or for this and that imagined transgression is what we used to call–gossip.
    Surely, all media must practice transparency, but I really don’t think this FTC ruling comes out of that priority. The FTC is interested in advertisers and in celebrities with ties to companies who use the Internet subversively. That’s where the problem lies, and it’s plainly stated, too.

  41. Randy Watson - October 7, 2009

    Newest development in this story: the IRS is now joining the battle against bloggers:

  42. Charlie Olken - October 7, 2009

    No chance of that happening. You heard it here–and a thousand other places. Wine is the least of their worries. Free cars, multiple thousand dollar fam trips and employment rewards (sell the most product and get a week in the Cayman Islands all expenses paid for you and your spouse). The IRS might care about that. They just don’t give a hoot about a twenty buck bottle of wine.

  43. Jesse of Hipster Enology - October 7, 2009

    RE: Mark Fish
    Actually, the FCC DID try to step in first, in 2006. Please see the Net Neutrality debate of 2007. The same companies that own the media conglomerates own the ISPs, telephone lines & television waves. My immediate thought was that media lobbyists set their sights on the FTC after the FCC loss as a means of controlling their competition. I am actually quite surprised that this point hasn’t come up here or on other wine blogs, but then again, I often take the depths of my nerd-dom for granted.

  44. John Henry - October 7, 2009

    HAs any one seen this new video blig… is very interesting….and he is very knowledgeable….check it out if you like video blogs

  45. dhonig - October 12, 2009

    With all due respect, I fear you miss the point in the FTC’s distinction between bloggers and traditional media. The key phrase is not “bloggers,” but “personal blog.” A “personal blog” is one person appearing to be giving a personal opinion, a “hey friend, between you and me …” sort of opinion. When they are receiving free goods to give that opinion, the appearance of one-to-one is misleading, as it fails to advise that there is a third party in the room.
    To follow up on your Steve Heimoff example, the fact that he is a “professional journalist” would not make any difference here. If he posted a review of a free bottle on his personal blog, he would fall under the “blogger” portion of the analysis rather than the “magazine” portion. The key point is not the form of media, but the message being relayed.
    Note, please, this does not mean that I agree with the FTC guidelines. More important, I believe them to be unenforceable, for reasons I will explore in detail elsewhere. I simply believe you misunderstand the distinction they were drawing and the reasons behind them.

  46. Lisa@Best Wine Clubs - May 16, 2010

    I think as long as you are giving an honest opinion it should be ok. Whats next? Do you have to declare free samples at the supermarket? I think the gov needs to crack down on the people from Wall street who stole our money!

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