FTC rule and blogs

The FTC's new rule on blogger disclosure of gifts unfairly targets bloggers, and is impossible to enforce uniformly.

If bloggers are going to be required to put readers on notice of every gift that makes it on to their sites, why not newspaper and magazine writers? Beauty and fashion writers squeal (double entendre?) through their pages about the stacks of samples their offices receive. We readers can only assume that these gifts are from which the lists of "Must Haves," "Must Buys," "Hot Trends," and "Editor's Picks" are plucked. In fact, I can't remember the last time a publication that derives revenue from advertiser content told me not to buy something. By comparison, a blogger's endorsement of a kitchen mixer is chump change.

Until the FTC puts the onus on the givers such gifts to document and report, the new regulation will not be evenly enforced. The sheer abundance of blogs versus the limited regulatory resources, and the ease of ignoring the rule, as well as plain old lying, are ingredients for the kind of spotty enforcement. A low risk of being caught means that bloggers will take their chances on a relatively higher reward, and apathy toward regulation will follow. For the music blogger in the Globe's article, it already has. If the gift-givers were instead required to report the goodies to the IRS, the incentive of a tax deduction would go further to ensure compliance.

Another note:
The class' discussion of the regulation's constitutionality didn't touch on the Supreme Court's treatment of commercial speech, but I think this aspect is worth mention. I would think that, while dependent upon how "commercial" a compensated blogger's message about a product turned out to be, the Court's position on commercial speech would uphold the regulation. The Court has held that otherwise educational messages are not automatically transformed to commercial ones simply because the speaker is economically motivated. However, if a blog could be shown to essentially be a commercial for a gift product, I think the Court would agree that the government has a substantial interest in regulating that type of a commercial speech, and that the rule was not overly broad.