Parenting Blogs May Be Held Liable for Product Reviews

April 13, 2009 — -- Mommy blogger Colleen Padilla never imagined that her opinions would become so coveted by other parents that corporations would come knocking on her door, requesting that she review their products and tout them in the blogosphere.

She launched her blog, Classymommy.com, as a way to chronicle her life as a new mom but it quickly transformed into a small business venture for the Philadelphia mom of two.

In the past three years, Padilla has reviewed more than 1,000 products, everything from diapers to plush toys to infant-safe skin creams, to the delight of the growing parenting community that she says considers a stamp of approval from fellow parents to be the final word.

But, now, Padilla and the estimated hundreds of thousands of fellow parenting bloggers may be in danger of being sued if the government approves a change in its policy regarding endorsements of products by Web pundits.

"I'm nervous; my Web site and blog is almost entirely product reviews, either written posts or video reviews that incorporate my children testing, trying or using products," Padilla told ABCNews.com.

"I've got over 1,000 products in my product finder, so this is alarming news that I may be held liable for my opinion," Padilla said

A regulatory review process is underway to determine whether reviews by bloggers like Padilla may be in violation of good business practices, said Richard Cleland, a spokesman for the Federal Trade Commission.

"The proposed revisions signal that the commission will apply existing principles of advertising law to new forms of media, like blogs," Cleland said, adding that a decision on the proposal is expected sometime this summer.

"These types of communications that appear to be just one mom to another mom are pretty effective," he said. "Consumer endorsements and testimonials have always been viewed as extremely effective types of marketing.

"But the concern is about those instances when [testimonials] are delivered and it is not made obvious that it's an advertisement for a company."

Whether these revisions, should they happen, will affect particular bloggers will depend on their relationship to the company whose product they're promoting, Cleland said. If a blogger reviews items in return for payment or free products, they may be held liable because the bloggers, unbeknown to their audiences, could be seen as shills for the companies.

"It would only affect bloggers who are paid to write reviews but the sticky issue that is raised is what happens if a product is given for free," Cleland said. "That's something we're going to have to address."

Will All Mommy Bloggers Be Held Liable If FTC Changes Its Rules?

Maria Bailey, the founder of BSM Media, a company that helps corporations market their products toward mothers, worries that a change in FTC policy may unfairly stifle the way many moms get their advice on parenting issues.

"When it comes to the mom market, 80 percent of moms buy a product at the recommendation of another mother," said Bailey, who estimates that 87 percent of mothers read blogs.

"So, from the business side, it's a terrible thing because that's how much moms find out about a product."

Cleland said the punishment a blogger might face could be comparable to that for those who are found to be engaging in false advertising, which ranges from cease-and-desist orders to reimbursement to consumers who believe they bought the product under false pretenses.

Whatever the punishment, Padilla said she's already looked into what she might have to do to shield her from lawsuits in the future.

While Padilla does not get paid directly for reviewing products, she does get products for free and is also paid by advertisers on her site. Additionally, Padilla was recently chosen to be an "online brand advocate" for Energizer re-chargeable batteries, a gig for which she is paid.

"I'm definitely going to consult a lawyer," Padilla said. "I've had specific disclaimer notices on some posts and some disclosure statements, but I need a blanket one for the overall site.

"I just don't know if I'm protected enough."

How To Protect Yourself If You're A Mommy Blogger

Sam Bayard, the assistant director at the Citizen Media Law Project developed by the Berkman Center for Internet & Society, said that while liability issues in connection to product reviews and blogging is fairly new territory, there are several things worried bloggers can do to try and shield themselves from lawsuits.

"Generally, the advantages of [setting up as] an LLC is that it makes you part of an organization," Bayard said of limited liability companies. "If someone else you work with says something defamatory, then it's the company, not you, that is held responsible."

Bayard said that "using common sense" may be a blogger's best defense as the FTC works to cement its policy on product reviews and endorsements.

"You shouldn't lie about your experiences with a product," he said. "If they're hiring you in a way or paying you to write the review, you may consider asking them for some background information on the product.

"Ask the company to tell you what a fair or accurate way to describe the product is to avoid any trouble."

Transparency about your blogger-company relationship, along with refraining from publishing extravagant claims, like saying that a product cured an ailment, are also good guidelines, Bayard said.

Linsey Krolik, a contributor to the Silicon Valley Mom's Blog and a technology and business lawyer, agreed that the best thing bloggers can do to protect themselves is remain as honest as possible when it comes to their product reviews.

"Some bloggers write in a way that makes it seem like they went out and bought the product and that it wasn't sent to them for a free review," Krolik said. "[Bloggers] should really have a disclosure policy or disclaimer that really reflects what they're doing.

"Mom's just need to be educated about the information they're really putting out there."

No matter what comes of FTC policy, BSM Media's Bailey predicts that companies eager to remain in touch with the mommy community may simply change to avoid the new rules.

"This sort of marketing isn't going to stop," she said. "These companies have realized how important it is to market to mothers; the foundation has been set."

Bailey estimates that the annual spending of mothers in the U.S. is $2.1 trillion and projects that number to rise to $3 trillion by 2012.

"I am certain they will find a different way to get to these moms," she said.