Endorsements and Testimonials in Advertising, FTC Guides

Endorsements and Testimonials in Advertising, FTC Guides

The Federal Trade Commission (FTC) enforces federal consumer protection laws, to prevent ABC Legal Docs logofraud, deception and unfair business practices.  They have published FTC Guides on the use of endorsements and testimonials in advertising, in the Code of Federal Regulations, 16 CFR 255.

The 2009 revision replaced the 1980 revision, and includes current marketing techniques, such as blogging, affiliate marketing and word-of-mouth advertising.

Purpose and Definitions

Advertisers and endorsers must follow the FTC Guides to avoid violations, corrective action and fines when using endorsements and testimonials.  The Guides provide examples illustrating the application of general principles the FTC will use in evaluating advertising for compliance with Section 5 of the FTC Act, 15 USC 45.

Endorsements Definition

An endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.

Endorsements and testimonials are treated identically.  The term product includes any product, service, company or industry.  An expert is an individual, group, or institution possessing, as a result of experience, study, or training, knowledge of a particular subject, which knowledge is superior to what ordinary individuals generally acquire.

General Considerations

Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser.  The endorsement message need not be phrased in the exact words of the endorser, unless the advertisement affirmatively so represents. However, the endorsement may not be presented out of context or reworded so as to distort in any way the endorser’s opinion or experience with the product.

When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user of it at the time the endorsement was given. Additionally, the advertiser may continue to run the advertisement only so long as it has good reason to believe that the endorser remains a bona fide user of the product.

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. Endorsers also may be liable for statements made in the course of their endorsements.

Consumer Endorsements

An advertisement employing endorsements by one or more consumers about the performance of an advertised product or service will be interpreted as representing that the product or service is effective for the purpose depicted in the advertisement.  Therefore, the advertiser must possess and rely upon adequate substantiation, including, when appropriate, competent and reliable scientific evidence, to support such claims made through endorsements.

An advertisement containing an endorsement relating the experience of one or more consumers on a central or key attribute of the product or service also will likely be interpreted as representing that the endorser’s experience is representative of what consumers will generally achieve with the advertised product or service in actual, albeit variable, conditions of use.  Therefore, an advertiser should possess and rely upon adequate substantiation for this representation.

Typical Results

Advertisers can no longer safely use best-case scenario testimonial claims with the disclaimer “results may vary.”  This safe harbor language from the 1980 version of the FTC guides has been removed in the 2009 version.  Ads must disclose a product’s generally expected typical performanceclearly and conspicuously” when using a testimonial that does not represent typical results.

Expert Endorsements

Whenever an advertisement represents, directly or by implication, that the endorser is an expert with respect to the endorsement message, then the endorser’s qualifications must in fact give the endorser the expertise that he or she is represented as possessing with respect to the endorsement.

Disclosure of Material Connections

When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.

Bloggers or commenters who receive any compensation to write about products or services are considered endorsers.  This connection should be disclosed in the post, in close proximity to the triggering claim.

If a business pays affiliates to endorse products or services, policies should be implemented to make sure that the affiliates are not making false, deceptive, unfair or unsubstantiated claims.

Endorsements by Organizations

An organization’s endorsement must be reached by a process sufficient to ensure that the endorsement fairly reflects the collective judgment of the organization.

Compliance Review

To avoid problems, advertising should be reviewed for regulatory compliance before publication.  Delegating part of your promotional program to an outside entity does not relieve you of responsibility or liability for compliance under the FTC Act.

[Disclaimer: No copyright claimed for public domain content from government publications.]
[Disclaimer: This article is not legal advice.  Consult with a competent attorney for legal advice.]

Resources

See the FTC website for more information on advertising with endorsements and testimonials.  Read the advertising examples provided in the FTC Guides.

https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf

https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking

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