Shut Your Mouth If Your Experience Is Not Typical Enough

The Federal Trade Commission, which has already followed the late Interstate Commerce Commission into glaring uselessness and could safely be abolished like the ICC, published its new endorsement guidelines today.

Highlights include but are not limited to a requirement that advertisers provide equal time to people who oppose their products:

Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides - which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as "results not typical" - the revised Guides no longer contain this safe harbor.

So if a customer tells you, for example, "The people were nice, the product was good and I got my money's worth," you can't use that endorsement unless you provide fairness and balance to any detractor who had a bad experience with an employee or had hoped to haggle down the price. (If you've ever run a business you know which type of customer you are more likely to hear from.)

But while fairness and balance apply to civilians, they don't seem to apply to either the establishment media or major-party politicians:

These examples address what constitutes an endorsement when the message is conveyed by bloggers or other "word-of-mouth" marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.

This blogger rule does not apply to journalists. Just in the opinion section of los Tiempos de Los Angeles, there is a table set aside for CDs, goodybags, DVDs, stuffed animals, samples and other free swag received from flacks and manufacturers. To the best of my knowledge Tim Rutten keeps parked outside his office a four-wheeled pallet stacked tit-high with review copies that don't fit in his office. That's just opinion. In the entertainment sections the swag is orders of magnitude more varied and valuable. Yet I don't remember any reviewer in any print publication ever disclosing that the record, the movie, the meal or the vacation was free.

Thank Satan we do not subject newspapers to this asinine level of scrutiny and disclosure. Praise Cybele that Sen. Obama did not have to include statistics provided by Dick Morris during his campaign commercials. Why does the Federal Trade Commission exist?

You'll definitely want to read the whole brief, which also gives "celebrities" a smack across their sculpted noses. Don't skip the boilerplate either, which explains that these are not new laws, just new interpretations of law by unelected officials serving the executive branch.

But don't have your mind clouded by hatred of this or any other executive branch. In fact, all four sitting FTC commissioners were appointed by the previous executive. Getting different commissioners seated won't help. Fight the real enemy. Abolish the Federal Trade Commission.

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  • Kolohe||

    So if a customer tells you, for example, "The people were nice, the product was good and I got my money's worth," you can't use that endorsement unless you provide fairness and balance to any detractor who had a bad experience with an employee or had hoped to haggle down the price

    Sorry, that's not what it says.

    What is says is if the customer's experience is 'typical' nothing else is required. So if the company is usually nice with a product worth the money, no problem.

    What it's targeting is things like 'I made 5,000 a week working at home'. You can argue about the efficacy of the new regulation, (and the ability to interpret it 'correctly') and even the efficacy of the FTC, but you're mischaracterizing the rule in your example.

  • Neu Mejican||

    Seconded.
    Not a well thought out post, it seems.

  • Spoonman||

    Who decides if it's a typical experience? The FTC?

  • Tim Cavanaugh||

    Exactly.

  • Steve Chaos||

    Except they've been doing it already for 29 years. Why the fuss now all of the sudden?

  • ||

    "Because we've always burned witches!" isn't really a good justification for continuing to do so. But setting that aside, the current fuss is because the FTC is expanding the rules and applying them to people who do not do this sort of thing for a living. The guy on Facebook with an Amazon affiliate account or a cousin who owns a restaurant does not have a legal department to review his every word for compliance with the FTC's latest "interpretation" of the law.

    And the FTC has stated that they're planning on selectively enforcing all of this, which is supposed to make us feel better. So just because Fred the Blogger wasn't targeted doesn't mean you won't be. So good luck figuring out what is and isn't really allowed. Government moves in mysterious ways, its dictates to enforce.

  • Steve Chaos||

    Bear in mind, my objection is fairly narrow - it is only questioning why the replacement of the "Results not typical" disclaimer with "typical results" is so onerous. The requirement for the "results not typical" is just as subjective as the requirement for "typical results"; in fact, my understanding is that they apply to the exact same cases. It my understanding, it is simply the substitution of one required action for another under the exact same circumstances. Again, if this understanding is incorrect, I am more than willing to hear why it is so.

    That being said, the rest of the argument is on-target. I agree that it's troubling they would advocate selective enforcement, broadening out the rules to bloggers, etc.

    My objection is solely to the point of what requires a disclaimer under the new rules for atypical claims is no different than the prior criteria. Therefore, unless one is complaining about the old criteria too, I don't see why this particular aspect of the new criteria is so objectionable.

    Again, the rest of it can go to hell. But that particular case - atypical claims made of a product - seem to be nothing new; just a new proposed remedy.

  • Kolohe||

    I already conceeded the point about the fuzziness of interpretation - on the margins. Your example is still a strawman, however.

  • gcr||

    In the past they had to disclose when results were not typical, so of course the typicality is already determined.

  • Steve Chaos||

    Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect.

    Maybe it makes me a bad libertarian, but I don't see why the above rule is bad in and of itself. Isn't this just basic truth in advertising? Aren't us libertarians generally opposed to fraud? I don't see how requiring someone advertising results grossly at odds with what someone can reasonably expect to achieve to actually disclose what "typical" results are is such an infringement. Any more, at least, than banning blatantly false claims, of which this is just is just a shade removed from.

    Queue refrain, "there's a sucker born any minute."

  • Autodidact||

    "So if a customer tells you, for example, "The people were nice, the product was good and I got my money's worth," you can't use that endorsement unless you provide fairness and balance to any detractor who had a bad experience with an employee or had hoped to haggle down the price."

    I think the same should hold true for campaign ads:

    Citizen #1: "Jim Johnson has been a great senator and has helped me personally as well by championing healthcare rights."

    Citizen #2: "Jim Johnson is a shitty senator who passed regulatory legislation that forced me out of the gas station business, leaving his brother-in-law's company as their only source of gasoline within a 50-mile radius."

    "I'm Jim Jonson and I approve this ad"

    This message was paid for by Re-elect Jim Johnson.

  • ||

    Yes, there are people who fall for the testimonial scheme in advertising.

    My penis grew 2 inches after using this supplement for only 6 months


    They are called suckers. One's born every minute and two to take him.

  • Xeones||

    Calling for the abolition of the FTC is racist.

  • I'm too stupid to make a point||

    Constantly repeating this phrase is a sign of low IQ?

  • zoltan||

    We are all aware that Jimmy Carter has a low IQ.

  • ||

    That was racist.

  • ||

    Spoken like a true racists.

  • tekende||

    Praise Cybele that Sen. Obama did not have to include statistics provided by Dick Morris during his campaign commercials.

    So I'm sitting here, and really bored, kind of nodding off every couple minutes, and having weird sort of dreams. The quoted sentence above caused me to "remember" the time when Obama claimed to have a tail but it was revealed moments later that he did not, in fact, have a tail.

    I really didn't get enough sleep last night.

  • Abdul||

    You should try Ambien. It worked great for me.

    Although the FTC requires me to tell you that it totally fucked up some other dude. So, you know, take it for what it's worth.

  • Xeones||

    Constantly repeating this phrase is a sign of low IQ?

    Who shat in your coffee this morning? If you don't like towing the lion when it comes to terrible running gags, you probably shouldn't be reading Hit'n'Run.

  • ||

    Seems to me like the real question here is what authority the FTC has to exist under the constitution... and what makes them think the 1st Amendment (or moreover, our natural right to freedom of speech) is subject to their interpretation.

  • gcr||

    They regulate interstate commerce.

  • highnumber||

    can't check the UToob link from work - is it Sinead?

    If so, that is an awesomely powerfully awesome performance. I think I fell a bit in love with her that night.

  • Tim Cavanaugh||

    It is Sinead. It was a simpler age, when a minor incident like that could give us not one but two great catchprases: Fight the real enemy, and Don't let the bastards get you down.

  • ||

    What is says is if the customer's experience is 'typical' nothing else is required. So if the company is usually nice with a product worth the money, no problem.

    So, what it creates is a massive new bureaucracy that goes around enforcing a nebulous standard based on the complaints of competitors?

    I'll pass.

  • ||

    I don't suppose the FTC bothered to share its copy of the Bill of Rights with us plebes, did it? You know, the one that says "Congress shall make no law, but the FTC can do whatever the fuck it wants, abridging the freedom of speech and of the press".

  • Steve Chaos||

    What about fraud? Direct, open fraud? (Forget this particular regulation for a moment.) Is this Constitutionally protected? Should it be?

    If I tell you a pack of lies about what my product does in an attempt to get you to buy it, it this not fraud?

  • ||

    If I tell you a pack of lies about what my product does in an attempt to get you to buy it, it this not fraud?

    Lies? Sure. But what this seems to be cracking down on are "I lost 70 pounds while on this product" claims. If that statement is true, there's nothing fraudulent about stating it, even if it's outcome is unlikely to be matched by a consumer. Nevertheless the FTC wants to force companies to idiot-proof their commercials on that score.

    That's kind of the point, if what the company is doing clearly _isn't_ fraud, the FTC has zero business stepping in and slapping them down for it.

    If at this stage of the game

  • Steve Chaos||

    But what this seems to be cracking down on are "I lost 70 pounds while on this product" claims. If that statement is true, there's nothing fraudulent about stating it, even if it's outcome is unlikely to be matched by a consumer.

    Yes, we agree on that count. And the FTC's proposed remedy is that every time they make one of those claims, instead of just having to say, "Results not typical," they instead have to say, "Typical results are X."

    I mean, do you oppose the disclaimer "Results not typical" as well? If you don't, why then do you oppose the idea of full disclosure in the face of using exceptional cases to sell? i.e., why is the disclosure of "typical" results in an already disclaimed condition so onerous?

    Do we at least agree that using claims based upon statistical outliers is borderline fraud (even if it is on the right side of the law), and hence is the original pretext for the caveat "results not typical?" How then is this new regulation particularly more onerous?

  • ||

    The Federal Trade Commission, which has already followed the late Interstate Commerce Commission into glaring uselessness and could safely be abolished like the ICC

    You think the ICC was abolished? I guess that's because you were misled by the title of the "ICC Termination Act of 1995." But as President Clinton pointed out when he signed the bill into law, it was nice as far as it went, but cutting the agency's jurisdiction back to something greater than where it was when it was founded in 1887, and changing the name over the door to "Surface Transportation Board," hardly qualifies as "abolishing" the agency.

  • ||

    How then is this new regulation particularly more onerous?

    Two things jump right out at me.

    (1) The new "guidelines" reach out to certain disfavored classes of individuals (bloggers, but not "journalists"). The opportunities for mischief on that front are pretty substantial.

    (2) The new guidelines require not just a simple disclaimer ("results not typical"), but instead a statement of what the typical results actually are. Again, the opportunities for regulatory mischief have just been increased by orders of magnitude.

  • Steve Chaos||

    (1) The new "guidelines" reach out to certain disfavored classes of individuals (bloggers, but not "journalists"). The opportunities for mischief on that front are pretty substantial.

    Oh, I absolutely agree on this front - I'm not going to dispute that the blogger part of this is a bad idea just waiting to happen. My focus is chiefly on the "results not typical" part.

    (2) The new guidelines require not just a simple disclaimer ("results not typical"), but instead a statement of what the typical results actually are. Again, the opportunities for regulatory mischief have just been increased by orders of magnitude.

    Do they? I can see how we might begin to quibble over the meaning of "typical results," but how does this differ from the present, in determining what requires the disclaimer in the first place?

    I guess what I'm saying here is that obviously there's an opportunity for regulatory mischief, but how much more so is there one now than there one was before the change, for this particular issue? (Again, notwithstanding the other things which I completely agree have all kinds of unforeseen consequences, as well as rather glaringly unequal applications.)

  • Lance Brown||

    One extra-onerous aspect is that it requires the advertiser to determine (and presumably track) what the "typical results" are. Take Subway. Sure, they know that Jared's results weren't typical; on average, their customers weren't losing hundreds of pounds during the time he was. But how in the world would they begin to discover what "typical results" were for other Subway customers? How would you even measure that, given all the other variables in those customers' lives? That's assuming you could even get the data on their weight loss or gain over time. I assume that under the new guidelines, they either have to figure out "typical results" from eating Subway as much as Jared did, or stop using him as an example/spokesperson.

    I suppose they could do independent studies to find out what results theoretical customers would have, or test subjects or something. Seems pretty burdensome, even for a company with deep pockets. Some local sub shop that wanted to do the same ad campaign premise would be out of luck, I presume. (Being unable to afford to figure out what typical results are.)

  • gcr||

    If subway wants to promote its product for weight loss, they should have some substantiation that the product actually leads to weight loss.

  • ||

    If you enjoyed this article by Cavenaugh, you'll enjoy this speech, which not only gloats at the death of old media, but also includes many Postrelian themes.

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  • Patrick||

    OUR COMMITMENT,CUSTOMER IS GOD.

    It's blog comments like this that create the need for the new regulations. I sincerely doubt that huangzhishuan09 actually treats his customers like God, even if they are wearing bikinis.

  • ||

    the first amendment should not apply to commercial speech. Misleading commercial speech has no first amendment protection as it is. Writing "results not typical" in small, impossible to read print at the bottom of a misleading ad does not make the ad non-misleading. I fully support this. It's long overdue.

    There are no free speech issues here. You don't have a first amendment right to say your penis growing pills work when they don't. You don't have a right to say your "ice cream and bacon diet" works when it doesn't.

    Get over it, and pick your battles more wisely.

  • Patrick||

    In fact, the First Amendment does apply to commercial speech.

  • Dedicated_Dad||

    Yet another example of why we all need to read and carefully consider the words of the Declaration of Independence.

    In sum, they're trying to legalize selective punishment of speech.

    Tyranny by any other name still stinks as horribly.

    Is it time to water the tree?

  • ||

    Who gets to decide who's a journalist vs. who's a blogger? Also, how do you define results as typical? If someone had a bad experience with a company several years ago, do they have to include them as an alternative viewpoint. It seems to me this reg puts a pretty severe constraint on businesses trying to revamp their image. If a company has had problems with customer service in the past, but changes their policies or whatever to improve it, do they have to show angry ex-customers reminding everybody how bad they used to be?

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