Walter Olson on the FTC vs. Bloggers

Olson has a series of posts on the new FTC rules.  They are here and here.

The scariest part for me is not just the rules, but the frank admission that they will be enforced unequally as the FTC says it will apply discretion as to who to prosecute for picayune violations and who they won't.  As I often say to folks, even if you trust this administration   (e.g. "your guys") to not abuse this power, what about the next administration (ie "the other guys")?

Olson has a priceless picture a medical blogger snapped at a recent trade show showing that there is reason to fear that rules aimed at ridiculously small conflicts of interest will be enforced even when they are dumb:


Anyone who has been involved in NCAA recruiting can tell you the absurd results that flow from defining even tiny freebies as violations.  For example, when I interview high school students for Princeton, I have to be careful not to buy them lunch or coffee on the off-chance they turn out to be athletes where such a purchase could trigger a recruiting violation.


  1. Tom G:

    Not even coffee? That's setting the dollar amount to prevent bribes to athletes REALLY low.

  2. Allen:

    So you can bribe a student to go there as long as they don't participate in the school's NCAA athletic programs? Seems like the money would be in getting the non-athletes to attend.

    But ya, it's pretty silly the levels they'll go to. It leaves me wondering if I have a pen from my grandma's insurance agent in NOrth Dakota what could happen if in a blog I mentioned what a good job he did working with my grandma in getting her roof fixed.

  3. James:

    If the FTC is actually publicly admitting this, it stands about zero shot of being upheld in any court. Such laws are fundamentally unconstitutional, and have been routinely declared so since the country's fouding.

  4. Doug:

    Lord, I hope you're right, James, but just about everything government does nowadays would be ruled unconstitutional a few decades ago. Now they're all in cahoots with one another, and NOTHING is unconstitutional anymore. McCain-Feingold should convince anyone that the Constitution is dead and buried.

  5. Dr. T:

    None of these rules or regulations are laws, therefore the Constitution doesn't come into play. But, in a bureaucratic society, the big bureaus can make things tough for non-compliers. Scenario: A drug company tells the FTC, "I don't care about your regulations, I'm going to spend money on the doctors that prescribe our medicines." That company suddenly finds that all of its magazine, radio, and TV ads are pulled while the FTC looks for violations; it's stock dealings looked fishy so the SEC was called; it's financial arrangements with its European partners are questionable so the IRS was called; and it's clinical trials may have bad data so every drug in the FDA pipeline is getting twice normal scrutiny. Given the likelihood of such scenarios, the CEOs grit their teeth and accept the FTC regulations.

    The only way to stop this is to end big government and kill off these nanny-state agencies.

  6. Chris:

    When I saw the photo taken at a medical meeting, my first thought was that this is a joke. Then I remembered an indoctrination session several months ago at my academic medical center on conflicts of interest with private industry. Yes, the poster is not a joke, it is real and reflects more absurd regulation. As a physician, I cannot drink a cup of coffee provided by a drug maker, receive a cheap pen or note pad as this violates new conflict of interest rules. I can understand the intent of the law to prevent flagrant abuses but this is truly overreaction. I think drug and medical device makers have a right to provide information to physicians about their products; this does not constitute quid pro quo. If you think this is bad, just wait for health care reform!

  7. Dan:

    Tom G: Yes, even coffee. I went to Scotland in 1997 on a golf tour that accompanying a D-1 university golf team. Part of our fees subsidized the students, but there was an NCAA compliance officer (university employee) along and the group was cautioned not to buy something as trivial as a cup of coffee for a student lest there be an infraction of NCAA rules. I'm NOT making that up.