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04.19.2010

Rodney Strong and the Utter Stupidity of the FTC

I'm in a pissy mood. At first I thought it was because I ordered a Pinot Noir tonight at a restaurant that wasn't as nuanced as I had hoped. But the more I leveled with myself, the more I realized it was really because I got the following e-mail today that I've been gnashing my teeth over, so to speak, for a number of hours:

Dear Alder,

In accordance with the Federal Trade Commission, below is Rodney Strong's digital influencer agreement. To receive future releases of Rodney Strong Wine Estates wines for possible review, please review and reply YES to this email. To decline, reply NO, but understand I will no longer send you wines.

Please do not alter the subject line. Please know that I am sending this to all my media contacts, whether you blog or not. Everything seemingly gets online one way or another.

RODNEY STRONG WINE ESTATES
DIGITAL INFLUENCER ENGAGEMENT & CODE OF CONDUCT AGREEMENT

Rodney Strong Wine Estates is committed to compliance with laws and regulations that govern the prevention of unfair, deceptive or misleading marketing practices between brands, bloggers and other digital influencers.

Our goal with these guidelines is to continue to work in a transparent manner with influencers like you who share our core values. This 'Digital Influencer Engagement & Code of Conduct Agreement' document merely codifies our current best practices.

Please know that we greatly appreciate your voluntary participation with us and we do not require any influencer to blog or discuss Rodney Strong Wine Estates, its labels, products, initiatives or events related to the company regardless of any material compensation.

Because we believe true advocacy can never be purchased, we do not pay for editorial placement. However, we do provide free product, host regional meetings and sponsor Sonoma County wine education trips for qualifying journalists, bloggers and other digital influencers.

In order to remain compliant with the Federal Trade Commission (FTC) blogger guidelines, Rodney Strong Wine Estates respectfully requests that you adhere to the below listed disclosures and best practices.

Standards of Conduct in Working with Rodney Strong Wine Estates:
* We ask that you disclose in each post if you received free product, a trip, or any other material compensation received from Rodney Strong Wine Estates.
* We have always stressed honesty in reviews and ask that you give your true opinion of our wine. We will not tell you what to write, we encourage you to state your personal findings, beliefs and experiences.
* Any blogger who receives any material compensation from Rodney Strong Wine Estates shall comply with the Guides Concerning Use of Endorsements and Testimonials in Advertising published by the Federal Trade Commission.

Tips on compliance:
* Disclose in each post.
* Create a disclosure policy that is visible and easy to read on your website, blog or Twitter account.
* Include brand affiliation and /or your likelihood that you will receive compensation in the future in your bio.

We want to have a long, mutually beneficial relationship with you and would be happy to answer any questions you may have about the FTC disclosure guidelines.

If you are in agreement with the above guidelines, please reply YES to this email.

Robert Larsen
Public Relations Director
Rodney Strong Wine Estates

This well written letter is, of course, in response to the recent FTC ruling that so many of us in the wine blogosphere wrote about a few months ago. In case you missed it, the FTC stated that it would henceforth be able to fine and prosecute both the bloggers who fail to disclose when they are writing about a product that they received for free, as well as the company that provided the product.

Of course the thing that galled so many about this ruling is that it specifically exempted print journalism, in a truly mind-numbing double standard of gargantuan proportions.

It's no wonder then, that Rodney Strong, perhaps one of the more frequent shippers of wine samples to bloggers, feels the need to offer this bit of (quite well done) ass-covering digital contractualism. If I were them, I'd do it too.

The requests that they make of bloggers are quite reasonable given the FTC ruling, and for most serious wine bloggers, something they've been doing already.

It pisses me off to no end, however, that they aren't forced to do the same with the print journalists of the world, who in turn, have no obligation to meet any such standards of conduct.

Not that it's their fault, but it also pisses me off to be talked to this way by a winery, as if thanks to the FTC we now need to have some sort of contractual relationship, when that is the last thing I want to have with any winery. Despite the very appropriate language about how the winery does not expect anything but honesty, and never requires anyone to write anything even if they do receive a sample, they damn well are requiring what amounts to a verbal contract with various terms and conditions.

I'll be interested to see whether this becomes a common thing, or whether it is merely the overly cautious action of a large company that suffered some unanticipated public controversy in the past for a sample campaign to wine bloggers.

But until I start getting letters like this from everyone that wants to send me a wine sample, I've decided it feels far too... yucky. Which shouldn't be a reflection on the winery, just a reflection of the overall situation caused by our friends in the government. So for now, that's a big NO, from me, Mr. Larsen. I'm sorry you felt compelled to write it, but you did a good job considering the utter inanity that prompted it.

Comments (49)

04.19.10 at 11:56 PM

Tough decision. I signed it and sent it back because I agree with you that print journalists, of which I am one, ought to be held to the same standards. And because it was sent to me, I am assuming that it was not sent uniquely to bloggers.

You would think that a Govt that has been burned for a trillion dollars by big financial institutions would understand that ethical standards ought to apply to everyone.

Paul Mabray wrote:
04.20.10 at 12:18 AM

Alder,
I agree the FTC is stupid about this. I agree print needs to have the same standards. But I don't agree that RS gets a slap for trying to be proactive and still work with bloggers despite all government friction that they are forced to overcome. This letter smacks of embracing you and all bloggers by trying to help everyone adhere to the FTC stupidity so they can continue, with good faith, send samples as they do traditional publications. I personally applaud the letter and continue to tip my hat to Rodney Strong who has shown continual leadership with online critics and wine writers (aka bloggers) with a great amount of support and respect for the new medium. Instead you chastise him for a healthy and kind letter. As one of the leaders of wine bloggers I am surprised and disappointed in your response Alder. Your tone to this effort is unfortunate and instead of rewarding innovative wineries with great ethical and kindness, you chastise them. #notcool

Thank you Rodney Strong, for showing leadership. Perhaps others will follow your example with both this letter (very kindly and appropriately phrased) as well as your intelligent understanding that wine bloggers (with all their varying skill sets) are just wine writers (with all their varying skill sets) that are writing online.

Mad kudos and kung foo respect to Robert Larsen.

Greg wrote:
04.20.10 at 2:06 AM

Alder, its not a contract if there is no exchange of money (as I understand it).

The whole thing seems very weird, you woud think this sort of thing would be covered by ordinary disclosure laws.

John Kelly wrote:
04.20.10 at 3:12 AM

Sent "...to all my media contacts, whether you blog or not." Which is why you got it Charlie. The explicit acknowledgement that print content "...gets online in one way or another" seems really forward-thinking. Or perhaps the people at RS got that bit from a discussion with a lawyer at FTC?

Greg - as I understand it a contract covers material compensation. Free samples and the other bennies mentioned in the RS letter represent a cost to the winery, and material compensation to those who receive them. Which is where this whole issue gets sticky. I'm not sure what "ordinary disclosure laws" you refer to.

1WineDude wrote:
04.20.10 at 4:11 AM

I think you're just in a bad mood, bro.

Evan Dawson wrote:
04.20.10 at 4:41 AM

Wow. Based on the first graph of your post, I expected some pernicious or highly inappropriate email. Instead, I read the kind of email that thoughtful, careful, forward-thinking wineries feel compelled to write. And then, strangely, I read you bash the company for that email.

Don't take it out on wineries and companies like RS.

Alder Yarrow wrote:
04.20.10 at 6:32 AM

Paul, Evan,

Either I was too subtle, or you didn't read my piece carefully enough. I'm not giving Rodney Strong a slap at all. I think the letter is great. I'm just grumpy about the situation that spawned it.

04.20.10 at 6:32 AM

Content providers who publish in print as well as online also received the Rodney Strong e-mail. See the second paragraph of Larsen's text.

Larsen's note makes clear the lack of divide between online and print publishing, whereas your blogged response and the FTC regulations seem to suggest that there are "print journalists" out there operating in some sort of anachronistic, paper-only world. I suppose there may be a few left, somewhere...

Alder Yarrow wrote:
04.20.10 at 6:52 AM

Joe,

Thanks for the comments. My blogged response doesn't represent my picture of the world divided between print journalists and online journalists, merely the frustration over a government that sees things that way. A government that somehow finds a way to distinguish between say, my site, and Charlie Olken's newsletter by stating rather plainly that because Olken is a "print publication" he is assumed to have the editorial controls in place to prevent sample merchandise from tainting his editorial, whereas I need to be subject to a new form of regulation.

Kathy wrote:
04.20.10 at 7:06 AM

As I understand it, bloggers should be posting something to comply with FTC anyway - which, in reading your "About Us," seems to cover it (though there is not a direct link to something like "FTC compliance.").
What isn't clear to me is whether you/blogger/publisher need to create a link every time you mention a winery in editorial content that refers consumers to your policy. And whether a winery has to provide a link that you have to use when you use its name to refer consumers to its policy.
The FTC guidelines are a long way from concrete at this point. But if a blogger fails to disclose a material connection or misrepresents a product, it puts the advertiser (winery) at risk (FTC). The commission "would consider the advertiser's efforts to advise these endorsers of their responsibilities and to monitor their online behavior..." should the advertiser be investigated/prosecuted. What is unclear is whether there is a difference between you/editorial and you/publisher in the eyes of the FTC. And whether FTC moves content in print into this world if it is republished online.
It seems this is the first you've received. It will obviously generate a lot of discussions around the country. And I doubt it is the last.

Evan Dawson wrote:
04.20.10 at 7:54 AM

Alder,

I read your post carefully. You conclude with a big, indignant, capital NO to the company that is trying to get by and succeed in a rather unfortunate and silly climate (thanks to the government). You also wrote that you were pissed off "to be talked to this way by a winery." That comes off as saying you feel above such communication, or you felt they condescended to you simply by trying to do their best in a tough circumstance.

The point is not that the post was too subtle. It's that this was practically friendly fire against a company that probably agrees with you.

Taylor Eason wrote:
04.20.10 at 8:04 AM

I received the same letter yesterday and immediately harked back to all the controversy surrounding the FTC ruling. Yes, that ruling is insultingly silly but there are plenty of bloggers that would sell out and give (or feel obligated to give) a positive review if free product came their way. The temptation could be intoxicating, especially if a winery dangles a free trip in their face. I've been writing about wine since 2001 for print (and online) and have accepted samples the whole time but my integrity (and editors) keep me in check. Who will keep the wild, wild west bloggers in check? Is there another way?

That said, if a blogger also posts negative reviews, the consumer/reader should be able to make up his/her own mind about the integrity of the writer. I assume the FTC is trying to "protect the public" with this, but I'm straddling the fence here.

Arthur wrote:
04.20.10 at 8:27 AM

After conversations with people at the FTC when this thing first hit the fan, my understanding is that the FTC "ruling" is NOT a RULING and is not really legally binding. It is really a GUIDELIN. It will not likely be enforced and it was aimed at the mommybloggers.
I also understand that saying you got a wine as a sample is sufficient disclaimer.

04.20.10 at 8:27 AM

I would ask all who got the letter to sign it in solidarity with the need for transparency, good ethics and a belief that we can all do this correctly. Regardless of the silliness here, the underlying principle is one with which most of us agree.

Each and every time that a winewriter steps across the ethics line, we are all affected negatively in some way.

El Jefe wrote:
04.20.10 at 11:36 AM

Actually, the point about this exchange being effectively a contract is well taken. I'd be surprised if that sits well with many journalists, and I understand why you felt compelled to reply with a NO.

This email from RS smells like yet more of the continued excessive over-the-top caution we get from lawyers these days. RS is not in any jeopardy from the FTC ruling, so why did they feel so compelled to risk alienation by sending out this letter? A simple statement of the policy could and should have been enough.

Bill Smart wrote:
04.20.10 at 1:36 PM

Gotta jump in here in and come to my buddy Robert's defense. I know, I know, big surpise - one PR guy defending another. At any rate, if I had to GUESS, this was not something that Robert WANTED to write and send to his media list. Rather, this was probably from some pencil pusher who sees everything as black and white. And while, I agree with El Jefe (what's up dude), the fact of the matter is that when it comes to Robert Larsen, he is one of the more standup, can do guys I know. I respect him, what he does and the wines of Rodney Strong.

Alder Yarrow wrote:
04.20.10 at 1:55 PM

Bill,

I can easily imagine that this scenario played out exactly as you suggest. But Robert doesn't need defending even if it was his idea. There's nothing wrong with the letter or the fact that Rodney Strong decided to send it. It's the idiotic government guidelines behind it that are under attack here. Robert's letter just serves as an excuse to lambast them.

Alder

Bill Smart wrote:
04.20.10 at 2:04 PM

Alder, I hear you. But, if I might be so bold, don't punish Robert and RS for our stupid government. Rather, proudly take his samples and review them as you do - fairly and impartially. We need you out there sharing the good news about great wines.

Gerald Weisl wrote:
04.20.10 at 3:01 PM

How about reviewers/critics/bloggers/wine-judgings & competitions coming up with a document for wineries/marketing companies/importers to sign? This would be a pledge to send samples which are actually representative of the wine being available for sale and in "commerce" as opposed to those small lots made solely for wine critics' reviews.

04.20.10 at 3:18 PM

All day on video location and just listening till now. To be clear, I'm not a big fan of these rules (or guidelines -- call them what you will), but there certainly is an endorsement of blogging here. I sent the letter to everyone on my list that reviews wine, holding everyone equal. One of the key things to focus on, as we muddle through on-line jounalism (or the gov's take on it), is to be proactive.

There have been many out there that have been more proactive than Rodney Strong and me, but when and where we can, we're on board to support forward movement of wine coverage.

Best regards to all,
Robert

Dan Berger wrote:
04.20.10 at 4:48 PM

When I saw the request, I thought it was an April Fool joke. Does the phrase "fair comment and criticism" have any place in this dialogue?

Ken Payton wrote:
04.20.10 at 4:55 PM

El Jefe and Charlie Oiken are both correct. I had numerous email exchanges over time with the FTC itself leading to my series of stories and updates on this matter. Rodney Strong chose to send a ridiculously inflated email about what are pretty hum drum FTC 'guidelines'. And make no mistake: They are guidelines only. The FTC impose neither fines or prosecute. They recommend cases to the appropriate law enforcement agency who then decide whether there is sufficient reason (read: public interest) to pursue. Wine writers are not high on their list, I can assure you.

My feeling is that RS is playing fast and loose with the truth for a reason, self-serving, most likely.

Alder, I strongly recommend you actually contact the FTC and speak with them. BTW, the rational for excluding print is that when David Pogue of the NY Times, for example, reviews consumer electronics, it is assumed by the public that he does not buy each device. When a car is reviewed in the LA Times the public assumes it was not purchased. No such consistent public assumption is possible in the blogosphere. Hence, disclosure is now required. No big deal.

Ex-Gov't Spin Doctor wrote:
04.20.10 at 7:22 PM

Hey Alder,

If Rodney Strong "mistakenly" left a super-secret prototype of it's newest social-media PR tactic on the bar at the Healdsburg Inn, might you stir things up and get lots of people interested in the topic? I mean, you even say "I'm not giving Rodney Strong a slap at all. I think the letter is great."

So, are you being compensated for this post, or what? Or is it possible that you are just playing right into Mr. Larsen's clever, double-edged tactic (bravo!) of both cleaning up and trimming the expense of his sample distribution list in these tough times, as well as getting a rise out of the very same blogosphere to increase the word count of his winery (I've said it twice already, no need to add to his little victory!!)

Cheers, and lighten up. :-)

Alder Yarrow wrote:
04.20.10 at 8:35 PM

Spin Doctor,

It probably brands me as a certain type of cynic, but the first thing I thought when I saw the e-mail was, wow, this is a brilliant PR move in itself, because many of the bloggers who get it are going to be tempted to write about it (always looking for material, them bloggers).

But after reading it a couple of times, I decided that it was more of a proactive attempt to stay on the right side of the.. law/guidelines/whatever the hell you want to call it by a company that has seen some blowback from involvement with bloggers in the past.

Guitarguy wrote:
04.20.10 at 10:46 PM

Dude, its stupid but the government is broke, they need to levy some fines to make some money or we will all be drinking Hearty Burgundy...LOL. As a non-blogger, HR 5034, the bill you discussed a couple of posts ago concerns me much more and would have a much greater affect on my life and access to great wine. Unfortunately, as a Texas suburb resident, my right wing nut reps and senators are hopelessly in the pocket of the very small circle of distributors that own wine distribution in this state. They would undoubtedly support it. So sign the paper, drink your damn free wine (poor you) and get over it. Sounds like you are just trying to make the rest of us feel bad we can't get in on this action. Wait until you have to sign all the papers at ZAP next year, you do get in free I assume?

Guitarguy wrote:
04.20.10 at 10:51 PM

Let me clarify, would not complimentary access to a tasting that you then write about the wines be essentially the same as getting a free bottle from a winery? Taste or bottle, free, all the same is it not? And would you not have to declare for each winery and sign their paper too? Good luck to you.

Guitarguy wrote:
04.20.10 at 11:00 PM

Alder, Fox News is also assumed to be "Fair and Balanced" by the FTC. HAHAHAHAHAHAHA. Your right, they are hosing the bloggers unfairly.

Kevin OBrien wrote:
04.21.10 at 7:50 AM

Paul Maybray is right, and for some reason you never address what your big NO actually means? No more reviewing Rodney Strong? (that's what it suggests) or No compliance with the FCC? What are you talking about when you say NO?

Without an explanation here you come off a bit arbitrary. Frankly, I have come to expect better from you.

Big Daub wrote:
04.21.10 at 7:51 AM

Spawned by print journalism...

Clearly shaking in their boots about the viral nature and effectiveness of wine blogging (not to mention the income disadvantage) it doesn't take Sherlock Holmes to see where this is coming from. The mystery is, how did "they" get the government's attention?

Jo Diaz wrote:
04.21.10 at 8:05 AM

We live in a litigious society... No real surprise here. I dare say that wineries with legal departments will now follow the lead of RS, because it's become public. Expect more of the CYAs to arrive. Once someone's jumped into the pool, it's inevitable.

Robert Larson is just following a directive... Get this out to everyone with whom you communicate.

As you said, Alder, those with ethics have already established their own rules of conduct, so no big deal.

This is just a reminder, for those who haven't worked more intimately with the big dogs, that they have legal departments. Robert's letter, while crafted by him perhaps, had to go to "legal" before it even got sent out.

I honestly wish the government would spend more time regulating bankers and Wall Street. They're focused on petty issues, when the big ones are out in plain sight, robbing the world.

What irony.

Alder Yarrow wrote:
04.21.10 at 9:01 AM

Kevin,

Read the letter again: "To receive future releases of Rodney Strong Wine Estates wines for possible review, please review and reply YES to this email. To decline, reply NO, but understand I will no longer send you wines."

His caps, not mine.

NO, means that I replied to his e-mail as he requested, and I'd rather not receive Rodney Strong wines instead of agreeing to this pseudo-contract.

Kevin OBrien wrote:
04.21.10 at 9:51 AM

Alder,

Thanks for clarifying. However, I think you are punishing the wrong agent here, specifically RS and YOUR READERS who should expect that you will be open to reviewing all comers with an open mind.

I think your idea about how to handle this opens you up to sharper criticism. Frankly, People are interested in your wine blog as an antidote to conceited self-serving blowhards who dominate the wine press...we actively root for you not to go down this path.

Any wine writer who self selects out of receiving and reviewing wines (as long as it is in a category he/she normally covers) starts down a slippery slope vis-a-vis his reputation for impartiality with his readership. What are you not going to review next?

Although I am no fan of RS specifically or larger wine companies in general, I can't find reason for faulting them here. I strongly think you shouldn't either. I, for one, would only like to see you fault them if they make poor wine or perpetrate some type of fraud on consumers.

I apologize for disagreeing with you, but I think I am not alone when I say a lot of us out there expect better from you. None of us want to see you become the next (to remain nameless) blowhard wine writer, and it is our responsibility (those of us who enjoy your work) to give you comments that keep you on the right path (even if our comments are unpleasant for you to hear).

I wont belabor this point any further because I expect we all will move on, and generally I expect you to go back to the good work you generally do...I just think you precisely missed this one and could use a little course correcting.

Keep up the Good Work, I will be reading!

Kevin

Alder Yarrow wrote:
04.21.10 at 10:13 AM

Kevin,

I appreciate your respectful tone and, of course, no need for apologies, you are free to criticize me all you want.

But I think it's a little odd that somehow me refusing samples from the one winery in existence that specifies as a precondition to sending me samples that I MUST agree to contractual-style agreement before they send me samples, somehow signifies me as going down the "slippery slope" of "self selecting" out of receiving wine samples and therefore compromising my impartiality. As if my personal level of comfort, opinion, and ethics have no bearing on the situation?

I also find it odd that you think I'm faulting RS in this situation. This sort of agreement they're REQUIRING isn't exactly standard operating procedure, and somehow by deciding I don't want to agree to it (while at the same time saying I both understand why they're doing it and think they did a good job with it) I'm punishing them?

I have wine samples from Rodney Strong sitting in my basement, and I will taste them in due time, as I taste every single wine sample I am ever sent, without fail, because that is my ethos.

Kevin OBrien wrote:
04.21.10 at 11:03 AM

Alder,

Thanks for note. Two answers to your questions:

1) Isn't the RS policy an AFFIRMATION of your impartiality and ethics? What's wrong in writing it down?
2) Punishment---This is a question about access. Anytime a winery cannot have access to a key wine writer they suffer from not getting the exposure. Readers can come up with many reasons why they don't see some wines reviews at their favorite sites(or why they see wines reviewed all the time for that matter, and yes, there is room for a winery to suffer if they are not among the wines reviewed.)

If RS had written you a letter suggesting you could only write favorable press about them, I would understand your indignation. But they didn't....I just don't get it.

Shouldn't all wine writers agree to the basic policy that RS set forth? How about being pro-active and writing your own code of ethics that complies to the FCC ruling (and challenging ALL wine writers (yes, even print) to join you!). In this case, you could argue to RS that you already have a written policy that complies and then there is no need to sign theirs based on redundancy. You could respond to Mr. Larsen that you have a more stringent standard than theirs. If they didn't send you samples then, I would think you have a beef..

I don't agree with you (yet!) on this one, but respect your thoughts and hope you appreciate the challenge to your opinions.

Cheers,

Kevin

Kevin OBrien wrote:
04.21.10 at 11:10 AM

One point I hope you dont misunderstand: I know you have a code of written code of ethics. I was thinking about considering expanding it to include concerns that are brought about by this FCC ruling and specifically challenging all other writers to join you.

Cheers,

KO

04.21.10 at 1:13 PM

I apologize if it seems like I am piling on.

I have long had a policy that I hope is fair, impartial, treats all comers as equals and has been expressed many times over.

I do not like the RS letter. I understand why it exists, and I find that, aside from my feeling that I am being intruded upon by the Govt, I find nothing in the RS stance that asks me to violate my strong beliefs that wine evaluation and criticism is best done in a transparent manner.

I noted above, and will repeat here, wine writers, whether in print as I am, or in the blogosphere or anywhere else, all ought to hold their noses, sign the letter and urge their peers to do likewise.

Then, we should do exactly as Mr. O'Brien has suggested and draw up a Code of Ethics that we believe to be good practice. This code should recognize the differences in types of publications and thus the differences in their mandates and resulting review styles, but it should exist and it can be endorsed or cursed by others as they see fit.

It would call for transparency as to source of wines tasted; it would call for transparency about trips taken that result in reviews and trip reports; it would call for each of us to have a published statement about our tasting procedures, our solicitation and acceptances of samples procedures; about our acceptance of gifts over a nominal amount (nobody really cares that Trefethen sends us eight ounces of walnuts, do they?); our rules for private tastings and for public tastings and thus for tasting notes tha emerge from those events. Yes, we writers should be proactive in that endeavor.

But, as of today, we are not collectively. And I, speaking only for myself, find nothing in the RS letter that asks me to do anything (a) that I am not doing now or (b) that is in the least bit offensive--except sign the letter. So, I have held my nose and signed it.

With great respect, and in friendship, Alder, I think you should too.

Alder Yarrow wrote:
04.21.10 at 2:25 PM

Charlie,

No need for apologies.

But let me turn your thoughts around.

I ALREADY have, and have had for years, a published ethics policy identifying what I do and how I do it. Since the very first press sample I received six years ago I have always, without fail, mentioned that I received a wine as a press sample in the review itself. Whenever I take a press junket, I write a post saying so prior to beginning my coverage from a region. By virtue of these I am already in compliance with the FTC guidelines, and anyone who sends me samples, as a result has their ass covered.

So Robert Strong has absolutely no need to send me such a request (though clearly Robert Larsen was just sending out the thing as a blanket). And I have no need to sign it.

I do understand that part of your request involves a plea towards solidarity, but I'm much more of the mind of some of your previously thoughtful comments suggesting the evangelization of just these sorts of personal disclosures that you and I have, which will obviate the need for letters such as Roberts in the future.

Lisa Mattson wrote:
04.21.10 at 6:43 PM

Rodney Strong is the first to take the CMA leap. Wow. I expected Gallo. Or Constellation. Or K-J. John Jordan is an attorney, and I will defend my stance on this subject. Wineries feeling obligated to send such a statement to bloggers and writers is disappointing. Just when we take three steps forward in this business, it seems as if we take four backward. Thanks again, federal government.

John Cesano wrote:
04.22.10 at 3:45 PM

I think the Rodney Strong letter is a smart proactive step taken to ensure their wines are covered in the way the government has guided, with disclosure of a sample for review by online wine writers - bloggers. It is easy for me to say I would have signed it, not having sufficient worth to Tom Klein's marketing folks yet, but I would have signed it in a heartbeat. Like you, I have a note about transparency on a permanent page, and include a disclosure on every post where I received a sample or "swag"; so signing the Rodney Strong letter would not effect me at all.

Alder, I do appreciate that you are bothered by the disparity in how the government sees and guides print wine writers and online wine writers. I, too, find the FTC guidelines ridiculous, only because they aren't applied equally to all writers. I can understand your displeasure with the government's treatment of wine bloggers as second class netizens, I understand your desire to react to the double standard.

I just think that in reacting negatively to Rodney Strong's proactive business request, you are cutting off your nose to spite your face. I'll be honest, I wish a few more people would say "no" to Rodney Strong; eventually they will get down Alawine's top 100 wine blogs to me, and I'll say "yes" and taste and review the wine for my (fewer than your) readers. I honestly would recommend swallowing your pride, admit to a bout of misplaced anger, and ask to reconsider so that your readers can have the benefit of your reviews of a popular brand.

If you are mad at the FTC, and want all wine writers to be treated the same regarding ethical transparency and disclosure, then write more about the issue, keeping the FTC in your sights as the source of your unhappiness, and leave the distractions out of your crusade. Robert Larson is just doing his job, and I think smartly.

Matt Speer wrote:
04.23.10 at 4:25 PM

I think my main problem with the letter is the pseudo contractality of it. Lets take this case to the extreme the letter seeks to avoid. A blogger somehow runs afoul of the guidelines and managing to both themselves and a winery fined. Does having responded to a letter like this with a YES then open the blogger to civil liability from the winery if they were to want to recover the fine they had to pay from the blogger?

I have no idea if agreeing to the conditions in the letter would or would not open a blogger up to some kind of civil liability. Before agreeing to something like this I would run it by a lawyer first to see if in fact I am agreeing to a contract or not.

Iris wrote:
04.24.10 at 11:45 PM

All this discussion reminds me strangely of the endless discussions we have as organic winemakers among those, who pay to be controlled, to be able to put "the label" on their bottles, so that even sold in a supermarket, clients have a kind of "guarantee", that they work properly, and those like me, who always publicly said what they do in the vines and in their cellar and do what they say, open to everybody.I try to work on this kind of credibility with my customers, hoping, that my personal ethics are transparent enough, to be credible - kind of old fashioned, perhaps...

Wandamae Lombardi wrote:
04.25.10 at 4:50 PM

Wait...did you check the extension on the e-mail....are you sure it wasn't whitehouse.gov?

04.25.10 at 9:12 PM

With all due respect to bloggers, I look at us as digital graffiti for the most part. It doesn't take much to post a blog. Hell, I did it. I certainly don't consider myself a digital influencer or a professional journalist. Basically, it was like Facebook with only 1 subject.

My blog was a light hearted journal about being a cellar intern that I didn't want cluttered with ads and I definitely didn't want to link up a bunch of disclaimers and disclosures. My personal view was to only write about my fun or hopefully interesting visits. Any downers were left out. Too many good stories out there to bog down on the negative. It was my personal journey - take it or leave it.
Lawyers must love this stuff.
The letter reminds me of the inside of my Explorer SportTrac. There must be at least 7 legal stickers for one thing or another in the cab. I would sue for distraction if I ever wreck. (kidding of course).

Anthony wrote:
04.26.10 at 1:17 AM

This is just fear of the unknown - the print world is trying (dying) to hang on and they are influencing all this crap (that is why they still are getting a free pass - I am looking at you James Suckling). It is ridiculous. And if you don't get it (i.e. are not as outraged as Alder is - at the law - not the winery), you really are not paying enough attention.

Matt wrote:
04.26.10 at 9:54 AM

I can't blame RS.

There are differing (and largely uninformed) opinions here on the import of the new guidelines. Suffice it to say that it would be a bad mistake be on the wrong side of them and that RS is following the general approach taken by sensible advertisers wanting to avoid liability.

Consider the Federal regulation at issue (which would be likely to be followed by any judge in the absence of a finding they are "arbitrary and capricious"):

16 CFR § 255 -- Guides Concerning the Use of Endorsements and Testimonials in Advertising

§ 255.1 General considerations.

* * *

(d) Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers [see § 255.5]. Endorsers also may be liable for statements made in the course of their endorsements.

* * *

Example 5: A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser’s products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion’s ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition. The advertiser is subject to liability for misleading or unsubstantiated representations made through the blogger’s endorsement. The blogger also is subject to liability for misleading or unsubstantiated representations made in the course of her endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously that she is being paid for her services. [See § 255.5.]

Ian Malone wrote:
04.28.10 at 10:44 AM

I think the heart of the issue is that the winery is the most likely party to get fined by the FTC if a blogger doesn't disclose free samples.. and up to $16,000. You can't really blame wineries like RS for wanting to protect themselves.

DP&F sums it up pretty well:

http://www.dpf-law.com/minute/13

El Jefe wrote:
05.01.10 at 9:31 AM

Alder - The FTC is getting busy enforcing this. One might get the impression RS is taking the right approach after all...

http://mashable.com/2010/04/30/ann-taylor-ftc-investigation/

Arthur wrote:
05.01.10 at 10:36 AM

From that linked post:

"the FTC has since emphasized that it’s more concerned about the behavior of brands and advertisers than with individual bloggers."

"The incident in question occurred on January 26. Ann Taylor invited bloggers to preview its Summer 2010 LOFT collection, *promising attendees a “special gift” and entry into a “mystery gift-card drawing” for those who submitted posts to the company within 24 hours of the event*. " .... now that is interesting.....

Anthony wrote:
05.02.10 at 2:14 AM

It seems that many of the comments that are still coming are focussing on the letter and RS, which I am pretty sure Alder stated wasn't really the issue. The issue is the law itself and the fact that this stuff has been foisted on bloggers, while the print world still gets a free ride -

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