San Clemente Web University: FREE Web Marketing & Advertising Classes

The FTC Needs to Shut Up!

The Federal Trade Commission (FTC) is one of the most unique
parts of our government. It has a wide range of powers given by
law, which encompass among other things the ability to pass
rules and regulations against unfair and deceptive acts or
practices. The FTC often issues “guidelines which are no more
than notices that they will push for prosecution or civil action
against individuals in violation their guidelines. Although
these guidelines are often up for public debate, they are not
passed by any governing body such as Congress, yet affect us
often more than any newly passed law would. While many people
see that the FTC is a consumer rights entity within the
government, a growing number of people see that the FTC is a
part of a growing, overreaching government that is interfering
with the ability of businesses and often individuals to conduct
business in this market economy.

I’m not claiming that the FTC should NOT prosecute obvious
fraud, where consumers are clearly being scammed – such as not
delivering a product as promised or the mass distribution of
unsafe toys. That being said, the FTC’s guidelines and civil
actions are quickly crossing the border of infringing not only
on our ability to do business, but our First Amendment Rights to
Free Speech. The Right to express one’s self and opinions,
whether it is political or business related is an inherent part
of our society and the foundations of our business community.
The courts have ruled that advertising is a form of free speech,
which cannot be infringed upon anymore than any other opinion,
written or spoken.

Recently the FTC issued guidelines (http://www.ftc.gov/opa/2009/
10/endortest.shtm) (which means, as said, we plan to bring action
against someone) that regulate bloggers. Bloggers are a unique
part of our economy, a throwback to the creation of this Country
when people would often hand out pamphlets to express their
opinion, in order to get attention to their cause. Bloggers are
often people, like myself, who have taken the initiative to put
their feelings down and write, taking the power away from larger
media organizations, and putting it into the hands of the
individual. As one knows, blogs often express anything from
political opinion to diet tips. They are sometimes political,
commercial, religious, or just something someone did in order to
express their frustration at their parents. Whatever the reason
is, they are a wonderful expression of our First Amendment
Rights.

Yet the FTC believes that bloggers are so unique, that they
need to be regulated in a way that has never been proposed to
mainstream media. The FTC recently issued regulations in which
they clearly state how bloggers who engage in commercial
activity, should clearly state how they are related to the
product, and make it obvious they are engaging in business, or
have been paid to endorse the product. This uniquely affects the
interactive advertising community, because it could easily be
interpreted that any link, any mention of a product that would
in turn create a sale (such as an affiliate link) would have to
be clearly mentioned as an advertisement or state the nature of
the relationship.

Additionally, more and more the FTC is engaged in the business
of deciding what is considered an “authentic or substantiated”
claim by an endorser or a product. While they have for the last
decade or so, been more involved in cases in which they believe
unsubstantiated product claims have been made, they are
specifically targeting bloggers – and their opinions. This
growing trend is more and more disturbing, as it gives the
government the right to make assumptions on the quality and
accuracy of claims of businesses – and then in theory, the
accuracy of claims of individuals. It asks businesses and
bloggers to basically “prove” what they are saying is correct,
even if it is an opinion. They must substantiate according to
the FTC, all their claims.

This is unique in nature, because it places an undue hardship
often on small businesses and bloggers, who cannot afford to
hire research teams or a huge law firm to assist them in the
creation of their materials. A sole-proprietor who discovers
that perhaps his home-made fig bars have lead to increased
weight loss and energy, in theory, will have to prove and
substantiate his claims before he could buy advertising on
Google that states that these bars can help in weight loss. It
could prevent a small business owner from selling knitted goods
on Ebay, because the claim that they have kept her warmer than
any other coat she owned, might be subject to scrutiny. They
have to worry that the government, the FTC might intervene at
some point and bring action against them based on perception and
supposition. It gives bureaucrats, non-elected officials an
extreme amount of power over small businesses in this Country.

The right of Free Speech in this Country is quite interesting,
because it allows people to express their opinion, even if they
are wrong. It assumes that no opinion is inherently wrong and
opens up the possibility of debate. It also assumes that most
adults are intelligent enough to make their own decisions
regarding their dislikes, their opinions and the products they
want to buy. The government, acting as “Big Mommy” is more and
more interfering and saying that they want to regulate what we
see and hear – that despite a huge Internet with tons of
information, we can’t do our own research and decide if a
product is what we want. We are giving the government more power
than has ever existed before: the ability to sanitize what we
hear and see before it’s released to the public.

“Government big enough to supply everything you need is big
enough to take everything you have. The course of history shows
us that as a government grows, liberty decreases.” – Thomas
Jefferson