Several years ago, I wrote about the FTC Endorsement Guides. (These are known more formally as the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising.) This post discusses a recent update to the FAQ for the FTC Endorsement Guides.
Scope of the FTC Enforcement Guides
The following excerpts from the Introduction to the FAQ provide a succinct overview of the scope of the FTC Endorsement Guides.
The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading. An endorsement must reflect the honest opinion of the endorser and can’t be used to make a claim that the product’s marketer couldn’t legally make.
In addition, the Guides say if there’s a connection between an endorser and the marketer that consumers would not expect and it would affect how consumers evaluate the endorsement, that connection should be disclosed. For example, if an ad features an endorser who’s a relative or employee of the marketer, the ad is misleading unless the connection is made clear. The same is usually true if the endorser has been paid or given something of value to tout the product….
Another principle in the Guides applies to ads that feature endorsements from people who achieved exceptional, or even above average, results. An example is an endorser who says she lost 20 pounds in two months using the advertised product. If the advertiser doesn’t have proof that the endorser’s experience represents what people will generally achieve using the product as described in the ad (for example, by just taking a pill daily for two months), then an ad featuring that endorser must make clear to the audience what the generally expected results are.
Topics Addressed by the FAQ
The FAQ addresses quite a few topics, such as:
- The legal basis for the Guides and to whom they apply.
- The types of endorsements to which the Guides apply.
- Distinguishing product placements (for example, on TV, which are regulated by the Federal Communications Commission rather than the FTC) from endorsements.
- Endorsements on social networking sites.
- Making disclosures clear and conspicuous.
- Contests and sweepstakes as incentives.
- Online reviews of products and services.
- Soliciting and paying for endorsements.
- Advertisers’ responsibilities for what others say in social media.
- Responsibilities of affiliate and network marketers.
- Expert and employee endorsements.
- Testimonials that do not reflect typical consumer experiences.
FTC Enforcement Guides – the Bottom Line
In summary, the simple principles for complying with the FTC Endorsement Guides are (1) be honest and (2) disclose any relationship that exists between an endorser and the provider of the product or service being endorsed.
Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.