The FTC is seeking comments to its proposed revisions to the Guides Concerning the Use of Endorsements and Testimonials in Advertising, last updated in 1980, and which define endorsements and testimonials: advertising messages reflecting opinions, beliefs, findings or experiences of someone other than the advertiser, and which consumers are likely to believe. The revisions propose changes to the way the FTC will interpret (and enforce) the Act:

  • The only perception that counts is whether consumer believes the endorser’s statements
  • Advertisers are liable for false or unsubstantiated statements
  • Endorsers (including bloggers) are liable for their statements
  • Consumer endorsements must give the impression the product or service will work for others, not just those in the ad
  • Performance endorsements will be viewed as effectiveness claims, requiring substantiation
  • The FTC has been unhappy with statements such as “results not typical” or “results may vary,” and if a testimonial indicates results may not be typical, disclosure of generally expected performance will be required
  • Advertisers remain liable for failing to disclose material connections (e.g., does the expert have a financial stake in sales?) with the endorser
  • Experts must have the expertise the ad implies, and absence of support could lead to a claim of deception

Obviously the points above do not do justice to the full scope of the proposed revisions. If you want justice, help in preparing responsive comments, or a better understanding of the implications to your advertising, call us—we endorse you doing so!