Free product samples were once one of the few perks of being a blogger. But with a federal investigation closing in, corporate giveaways may be a thing of the past.

The Federal Trade Commission is cracking down on bloggers who don’t disclose that they have received
free products from corporations. In June, the FTC announced new guidelines that would fine bloggers and corporations linked to them when writers do not admit to receiving payment for reviews and products they write about.

Today, the National Advertising Review Council has released two legal decisions that take issue with the way
brands disclose their relationship to sponsored review sites. But what they don’t touch upon is the extent to which brands will be held responsible for other people’s actions.

NARC focused on two companies that did not fully back claims about their products and blurred the line between advertising and editorial. NARC’s investigative units, the National Advertising Division(NAD) and the Electronic Retailing Self-Regulation Program (ERSP), found that Herbal Groups,
Inc. and Urban Nutrition need to be clearer about sponsorships and disclosure. Both companies created websites that appeared to be editorial but were actually sponsored by the companies and made claims about their products and their competitors that were not fully backed by science.

In the cast of Urban Nutrition, the company volunteered to state its connection to the products being reviewed, but the ERSP wanted the company to go a step further. NARC writes:

“ERSP noted that while it appreciated
the voluntary actions taken by Urban Nutrition, it is imperative that
the placement of disclosures regarding the marketer’s material connections
to the Websites and products be of such prominence to assure that consumers
understand the relationship between Urban Nutrition and the products
being reviewed immediately upon visiting the site. “

Urban Nutrition is happy to comply with the guidelines, but beyond simple disclosure, ERSP wants comments on each page of a website and thorough disclosure beyond any doubt for readers. 

That’s one thing for a company sponsored website, but what happens in other media? And when the company is not directly responsible for the copy? That’s when this will get interesting.

The New York Times notes a hypothetical example that gets to the heart of the Federal Trade Commission’s concerns:

The F.T.C. cited the fictional case of a video blogger
who receives a free copy of a new video game system from its
manufacturer for review. “The readers of his blog are unlikely to
expect that he has received the video game system free of charge in
exchange for his review of the product,” the commission wrote. As this
fact would likely affect how credible consumers find the review, the
blogger should disclose that he received the game free.

Many journalists receive free review products all the time. The problem is that readers may not assume that individual bloggers have the same sort of connections. There’s nothing wrong with disclosing this sort of thing, but in certain media it gets difficult. Where in a 140 character tweet do you fit a disclaimer, for instance?

Meanwhile, bloggers are not held to the same standards as journalists. Nor should they be. And regulating the blogosphere gets particularly thorny. In June, the FTC noted that both corporations and individual bloggers could get fined for violations about disclosure. But if bloggers want to ignore the rules, should brands be held responsible?

If companies want to be generous with their products because they are confident that they will be met with enthusiasm, they should not be punished. If they are paying for positive reviews, that’s another thing. But both shouldn’t fall under the same rubric and figuring out how to monitor the gray area will be tricky.