Yesterday, the Federal Trade Commission announced that it has approved final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act.The main thrust of the 81-page document, "Guides Concerning the Use of Endorsements and Testimonials in Advertising" occurs in a statement on page 75, which reads: "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."
The notice incorporates several changes to the FTC’s "Guides Concerning the Use of Endorsements and Testimonials in Advertising," which address endorsements by bloggers, consumers, experts, organizations, and celebrities, as well as the disclosure of important connections between advertisers and endorsers. The Guides, which become effective on Dec. 1, 2009, were last updated in 1980.
Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical, when that is not the case, will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides -- which allowed advertisers to describe unusual results in a testimonial, as long as they included a disclaimer such as "results not typical" -- the revised Guides no longer contain this safe harbor.
The revised Guides also add new examples to illustrate the longstanding principle that "material connections" [sometimes payments or free products] between advertisers and endorsers -- connections that consumers would not expect -- must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other "word-of-mouth" marketers.
The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.
Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement -- like any other advertisement -- is deceptive if it makes false or misleading claims.
Celebrity endorsers also are addressed in the revised Guides. While the 1980 Guides did not explicitly state that endorsers, as well as advertisers, could be liable under the FTC Act for statements they make in an endorsement, the revised Guides reflect Commission case law and clearly state that both advertisers and endorsers may be liable for false or unsubstantiated claims made in an endorsement -- or for failure to disclose material connections between the advertiser and endorsers. The revised Guides also make it clear that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on talk shows or in social media.
The Guides are administrative interpretations of the law, intended to help advertisers comply with the Federal Trade Commission Act; they are not binding law themselves. In any law enforcement action challenging the allegedly deceptive use of testimonials or endorsements, the Commission would have the burden of proving that the challenged conduct violates the FTC Act.
The Commission vote approving issuance of the Federal Register notice detailing the changes was 4-0. The notice will be published in the Federal Register shortly, and is available now on the FTC’s website as a link to this press release. Copies also are available from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580.
The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices, and to provide information to help spot, stop and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP [1-877-382-4357]. The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,700 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s website provides free information on a variety of consumer topics.
SOURCE: Federal Trade Commission
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