FTC guidelines

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

FEDERAL TRADE COMMISSION
16 CFR Part 255
Guides Concerning the Use of Endorsements and Testimonials in Advertising
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This document includes only the text of the Revised Endorsement and Testimonial Guides. To
learn more, read the Federal Register Notice at www.ftc.gov/opa/2009/10/endortest.shtm.
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§ 255.0 Purpose and definitions.
(a) The Guides in this part represent administrative interpretations of laws enforced by the
Federal Trade Commission for the guidance of the public in conducting its affairs in conformity
with legal requirements. Specifically, the Guides address the application of Section 5 of the FTC
Act (15 U.S.C. 45) to the use of endorsements and testimonials in advertising. The Guides provide
the basis for voluntary compliance with the law by advertisers and endorsers. Practices
inconsistent with these Guides may result in corrective action by the Commission under Section 5
if, after investigation, the Commission has reason to believe that the practices fall within the scope
of conduct declared unlawful by the statute.
The Guides set forth the general principles that the Commission will use in evaluating
endorsements and testimonials, together with examples illustrating the application of those
principles. The Guides do not purport to cover every possible use of endorsements in advertising.
Whether a particular endorsement or testimonial is deceptive will depend on the specific factual
circumstances of the advertisement at issue.
(b) For purposes of this part, 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. The party whose opinions, beliefs, findings, or experience the message
appears to reflect will be called the endorser and may be an individual, group, or institution.
(c) The Commission intends to treat endorsements and testimonials identically in the context
of its enforcement of the Federal Trade Commission Act and for purposes of this part. The term
endorsements is therefore generally used hereinafter to cover both terms and situations.
(d) For purposes of this part, the term product includes any product, service, company or
industry.
(e) For purposes of this part, 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.Example 1: A film critic’s review of a movie is excerpted in an advertisement. When so
used, the review meets the definition of an endorsement because it is viewed by readers as
a statement of the critic’s own opinions and not those of the film producer, distributor, or
exhibitor. Any alteration in or quotation from the text of the review that does not fairly
reflect its substance would be a violation of the standards set by this part because it would
distort the endorser’s opinion. [See § 255.1(b).]
Example 2: A TV commercial depicts two women in a supermarket buying a laundry
detergent. The women are not identified outside the context of the advertisement. One
comments to the other how clean her brand makes her family’s clothes, and the other then
comments that she will try it because she has not been fully satisfied with her own brand.
This obvious fictional dramatization of a real life situation would not be an endorsement.
Example 3: In an advertisement for a pain remedy, an announcer who is not familiar to
consumers except as a spokesman for the advertising drug company praises the drug’s
ability to deliver fast and lasting pain relief. He purports to speak, not on the basis of his
own opinions, but rather in the place of and on behalf of the drug company. The
announcer’s statements would not be considered an endorsement.
Example 4: A manufacturer of automobile tires hires a well-known professional
automobile racing driver to deliver its advertising message in television commercials. In
these commercials, the driver speaks of the smooth ride, strength, and long life of the tires.
Even though the message is not expressly declared to be the personal opinion of the driver,
it may nevertheless constitute an endorsement of the tires. Many consumers will recognize
this individual as being primarily a racing driver and not merely a spokesperson or
announcer for the advertiser. Accordingly, they may well believe the driver would not
speak for an automotive product unless he actually believed in what he was saying and had
personal knowledge sufficient to form that belief. Hence, they would think that the
advertising message reflects the driver’s personal views. This attribution of the underlying
views to the driver brings the advertisement within the definition of an endorsement for
purposes of this part.
Example 5: A television advertisement for a particular brand of golf balls shows a
prominent and well-recognized professional golfer practicing numerous drives off the tee.
This would be an endorsement by the golfer even though she makes no verbal statement in
the advertisement.
Example 6: An infomercial for a home fitness system is hosted by a well-known
entertainer. During the infomercial, the entertainer demonstrates the machine and states
that it is the most effective and easy-to-use home exercise machine that she has ever tried.
Even if she is reading from a script, this statement would be an endorsement, because
consumers are likely to believe it reflects the entertainer’s views.
Example 7: A television advertisement for a housewares store features a well-known
female comedian and a well-known male baseball player engaging in light-hearted banter
about products each one intends to purchase for the other. The comedian says that she will
buy him a Brand X, portable, high-definition television so he can finally see the strike
zone. He says that he will get her a Brand Y juicer so she can make juice with all the fruitand vegetables thrown at her during her performances. The comedian and baseball player
are not likely to be deemed endorsers because consumers will likely realize that the
individuals are not expressing their own views.
Example 8: A consumer who regularly purchases a particular brand of dog food decides
one day to purchase a new, more expensive brand made by the same manufacturer. She
writes in her personal blog that the change in diet has made her dog’s fur noticeably softer
and shinier, and that in her opinion, the new food definitely is worth the extra money. This
posting would not be deemed an endorsement under the Guides.
Assume that rather than purchase the dog food with her own money, the consumer gets it
for free because the store routinely tracks her purchases and its computer has generated a
coupon for a free trial bag of this new brand. Again, her posting would not be deemed an
endorsement under the Guides.
Assume now that the consumer joins a network marketing program under which she
periodically receives various products about which she can write reviews if she wants to do
so. If she receives a free bag of the new dog food through this program, her positive
review would be considered an endorsement under the Guides.
§ 255.1 General considerations.
(a) Endorsements must reflect the honest opinions, findings, beliefs, or experience of the
endorser. Furthermore, an endorsement may not convey any express or implied representation that
would be deceptive if made directly by the advertiser. [See §§ 255.2(a) and (b) regarding
substantiation of representations conveyed by consumer endorsements.
(b) 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. An advertiser may use an endorsement of an expert or celebrity only so long as it has
good reason to believe that the endorser continues to subscribe to the views presented. An
advertiser may satisfy this obligation by securing the endorser’s views at reasonable intervals
where reasonableness will be determined by such factors as new information on the performance
or effectiveness of the product, a material alteration in the product, changes in the performance of
competitors’ products, and the advertiser’s contract commitments.
(c) 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. [See § 255.1(b)
regarding the “good reason to believe” requirement.]
(d) 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 [see § 255.5]. Endorsers also may be liable for statements made in the course of their
endorsements.Example 1: A building contractor states in an advertisement that he uses the advertiser’s
exterior house paint because of its remarkable quick drying properties and durability. This
endorsement must comply with the pertinent requirements of Section 255.3 (Expert
Endorsements). Subsequently, the advertiser reformulates its paint to enable it to cover
exterior surfaces with only one coat. Prior to continued use of the contractor’s
endorsement, the advertiser must contact the contractor in order to determine whether the
contractor would continue to specify the paint and to subscribe to the views presented
previously.
Example 2: A television advertisement portrays a woman seated at a desk on which rest
five unmarked computer keyboards. An announcer says, “We asked X, an administrative
assistant for over ten years, to try these five unmarked keyboards and tell us which one she
liked best.” The advertisement portrays X typing on each keyboard and then picking the
advertiser’s brand. The announcer asks her why, and X gives her reasons. This
endorsement would probably not represent that X actually uses the advertiser’s keyboard at
work. In addition, the endorsement also may be required to meet the standards of Section
255.3 (expert endorsements).
Example 3: An ad for an acne treatment features a dermatologist who claims that the
product is “clinically proven” to work. Before giving the endorsement, she received a
write-up of the clinical study in question, which indicates flaws in the design and conduct
of the study that are so serious that they preclude any conclusions about the efficacy of the
product. The dermatologist is subject to liability for the false statements she made in the
advertisement. The advertiser is also liable for misrepresentations made through the
endorsement. [See Section 255.3 regarding the product evaluation that an expert endorser
must conduct.]
Example 4: A well-known celebrity appears in an infomercial for an oven roasting bag
that purportedly cooks every chicken perfectly in thirty minutes. During the shooting of
the infomercial, the celebrity watches five attempts to cook chickens using the bag. In
each attempt, the chicken is undercooked after thirty minutes and requires sixty minutes of
cooking time. In the commercial, the celebrity places an uncooked chicken in the oven
roasting bag and places the bag in one oven. He then takes a chicken roasting bag from a
second oven, removes from the bag what appears to be a perfectly cooked chicken, tastes
the chicken, and says that if you want perfect chicken every time, in just thirty minutes,
this is the product you need. A significant percentage of consumers are likely to believe
the celebrity’s statements represent his own views even though he is reading from a script.
The celebrity is subject to liability for his statement about the product. The advertiser is
also liable for misrepresentations made through the endorsement.
Example 5: A skin care products advertiser participates in a blog advertising service. The
service matches up advertisers with bloggers who will promote the advertiser’s products on
their personal blogs. The advertiser requests that a blogger try a new body lotion and write
a review of the product on her blog. Although the advertiser does not make any specific
claims about the lotion’s ability to cure skin conditions and the blogger does not ask the
advertiser whether there is substantiation for the claim, in her review the blogger writes
that the lotion cures eczema and recommends the product to her blog readers who suffer
from this condition. The advertiser is subject to liability for misleading or unsubstantiated The Commission tested the communication of advertisements containing testimonials 1
that clearly and prominently disclosed either “Results not typical” or the stronger “These
testimonials are based on the experiences of a few people and you are not likely to have similar
results.” Neither disclosure adequately reduced the communication that the experiences depicted
are generally representative. Based upon this research, the Commission believes that similar
disclaimers regarding the limited applicability of an endorser’s experience to what consumers
may generally expect to achieve are unlikely to be effective.
Nonetheless, the Commission cannot rule out the possibility that a strong disclaimer of
typicality could be effective in the context of a particular advertisement. Although the
Commission would have the burden of proof in a law enforcement action, the Commission notes
that an advertiser possessing reliable empirical testing demonstrating that the net impression of
its advertisement with such a disclaimer is non-deceptive will avoid the risk of the initiation of
such an action in the first instance.
representations made through the blogger’s endorsement. The blogger also is subject to
liability for misleading or unsubstantiated representations made in the course of her
endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously
that she is being paid for her services. [See § 255.5.]
In order to limit its potential liability, the advertiser should ensure that the advertising
service provides guidance and training to its bloggers concerning the need to ensure that
statements they make are truthful and substantiated. The advertiser should also monitor
bloggers who are being paid to promote its products and take steps necessary to halt the
continued publication of deceptive representations when they are discovered.
§ 255.2 Consumer endorsements.
(a) 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 in the same
manner the advertiser would be required to do if it had made the representation directly, i.e.,
without using endorsements. Consumer endorsements themselves are not competent and reliable
scientific evidence.
(b) 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. If the advertiser does not have substantiation that the endorser’s experience is
representative of what consumers will generally achieve, the advertisement should clearly and
conspicuously disclose the generally expected performance in the depicted circumstances, and the
advertiser must possess and rely on adequate substantiation for that representation.1(c) Advertisements presenting endorsements by what are represented, directly or by
implication, to be “actual consumers” should utilize actual consumers in both the audio and video,
or clearly and conspicuously disclose that the persons in such advertisements are not actual
consumers of the advertised product.
Example 1: A brochure for a baldness treatment consists entirely of testimonials from
satisfied customers who say that after using the product, they had amazing hair growth and
their hair is as thick and strong as it was when they were teenagers. The advertiser must
have competent and reliable scientific evidence that its product is effective in producing
new hair growth.
The ad will also likely communicate that the endorsers’ experiences are representative of
what new users of the product can generally expect. Therefore, even if the advertiser
includes a disclaimer such as, “Notice: These testimonials do not prove our product works.
You should not expect to have similar results,” the ad is likely to be deceptive unless the
advertiser has adequate substantiation that new users typically will experience results
similar to those experienced by the testimonialists.
Example 2: An advertisement disseminated by a company that sells heat pumps presents
endorsements from three individuals who state that after installing the company’s heat
pump in their homes, their monthly utility bills went down by $100, $125, and $150,
respectively. The ad will likely be interpreted as conveying that such savings are
representative of what consumers who buy the company’s heat pump can generally expect.
The advertiser does not have substantiation for that representation because, in fact, less
than 20% of purchasers will save $100 or more. A disclosure such as, “Results not typical”
or, “These testimonials are based on the experiences of a few people and you are not likely
to have similar results” is insufficient to prevent this ad from being deceptive because
consumers will still interpret the ad as conveying that the specified savings are
representative of what consumers can generally expect. The ad is less likely to be
deceptive if it clearly and conspicuously discloses the generally expected savings and the
advertiser has adequate substantiation that homeowners can achieve those results. There
are multiple ways that such a disclosure could be phrased, e.g., “the average homeowner
saves $35 per month,” “the typical family saves $50 per month during cold months and $20
per month in warm months,” or “most families save 10% on their utility bills.”
Example 3: An advertisement for a cholesterol-lowering product features an individual
who claims that his serum cholesterol went down by 120 points and does not mention
having made any lifestyle changes. A well-conducted clinical study shows that the product
reduces the cholesterol levels of individuals with elevated cholesterol by an average of
15% and the advertisement clearly and conspicuously discloses this fact. Despite the
presence of this disclosure, the advertisement would be deceptive if the advertiser does not
have adequate substantiation that the product can produce the specific results claimed by
the endorser (i.e., a 120-point drop in serum cholesterol without any lifestyle changes).
Example 4: An advertisement for a weight-loss product features a formerly obese woman.
She says in the ad, “Every day, I drank 2 WeightAway shakes, ate only raw vegetables, and
exercised vigorously for six hours at the gym. By the end of six months, I had gone from
250 pounds to 140 pounds.” The advertisement accurately describes the woman’sexperience, and such a result is within the range that would be generally experienced by an
extremely overweight individual who consumed WeightAway shakes, only ate raw
vegetables, and exercised as the endorser did. Because the endorser clearly describes the
limited and truly exceptional circumstances under which she achieved her results, the ad is
not likely to convey that consumers who weigh substantially less or use WeightAway
under less extreme circumstances will lose 110 pounds in six months. (If the
advertisement simply says that the endorser lost 110 pounds in six months using
WeightAway together with diet and exercise, however, this description would not
adequately alert consumers to the truly remarkable circumstances leading to her weight
loss.) The advertiser must have substantiation, however, for any performance claims
conveyed by the endorsement (e.g., that WeightAway is an effective weight loss product).
If, in the alternative, the advertisement simply features “before” and “after” pictures of a
woman who says “I lost 50 pounds in 6 months with WeightAway,” the ad is likely to
convey that her experience is representative of what consumers will generally achieve.
Therefore, if consumers cannot generally expect to achieve such results, the ad should
clearly and conspicuously disclose what they can expect to lose in the depicted
circumstances (e.g., “most women who use WeightAway for six months lose at least 15
pounds”).
If the ad features the same pictures but the testimonialist simply says, “I lost 50 pounds
with WeightAway,” and WeightAway users generally do not lose 50 pounds, the ad should
disclose what results they do generally achieve (e.g., “most women who use WeightAway
lose 15 pounds”).
Example 5: An advertisement presents the results of a poll of consumers who have used
the advertiser’s cake mixes as well as their own recipes. The results purport to show that
the majority believed that their families could not tell the difference between the advertised
mix and their own cakes baked from scratch. Many of the consumers are actually pictured
in the advertisement along with relevant, quoted portions of their statements endorsing the
product. This use of the results of a poll or survey of consumers represents that this is the
typical result that ordinary consumers can expect from the advertiser’s cake mix.
Example 6: An advertisement purports to portray a “hidden camera” situation in a
crowded cafeteria at breakfast time. A spokesperson for the advertiser asks a series of
actual patrons of the cafeteria for their spontaneous, honest opinions of the advertiser’s
recently introduced breakfast cereal. Even though the words “hidden camera” are not
displayed on the screen, and even though none of the actual patrons is specifically
identified during the advertisement, the net impression conveyed to consumers may well be
that these are actual customers, and not actors. If actors have been employed, this fact
should be clearly and conspicuously disclosed.
Example 7: An advertisement for a recently released motion picture shows three
individuals coming out of a theater, each of whom gives a positive statement about the
movie. These individuals are actual consumers expressing their personal views about the
movie. The advertiser does not need to have substantiation that their views are
representative of the opinions that most consumers will have about the movie. Because the
consumers’ statements would be understood to be the subjective opinions of only three
people, this advertisement is not likely to convey a typicality message. If the motion picture studio had approached these individuals outside the theater and
offered them free tickets if they would talk about the movie on camera afterwards, that
arrangement should be clearly and conspicuously disclosed. [See § 255.5.]
§ 255.3 Expert endorsements.
(a) 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.
(b) Although the expert may, in endorsing a product, take into account factors not within his or
her expertise (e.g., matters of taste or price), the endorsement must be supported by an actual
exercise of that expertise in evaluating product features or characteristics with respect to which he
or she is expert and which are relevant to an ordinary consumer’s use of or experience with the
product and are available to the ordinary consumer. This evaluation must have included an
examination or testing of the product at least as extensive as someone with the same degree of
expertise would normally need to conduct in order to support the conclusions presented in the
endorsement. To the extent that the advertisement implies that the endorsement was based upon a
comparison, such comparison must have been included in the expert’s evaluation; and as a result
of such comparison, the expert must have concluded that, with respect to those features on which
he or she is expert and which are relevant and available to an ordinary consumer, the endorsed
product is at least equal overall to the competitors’ products. Moreover, where the net impression
created by the endorsement is that the advertised product is superior to other products with respect
to any such feature or features, then the expert must in fact have found such superiority. [See
§ 255.1(d) regarding the liability of endorsers.]
Example 1: An endorsement of a particular automobile by one described as an “engineer”
implies that the endorser’s professional training and experience are such that he is well
acquainted with the design and performance of automobiles. If the endorser’s field is, for
example, chemical engineering, the endorsement would be deceptive.
Example 2: An endorser of a hearing aid is simply referred to as “Doctor” during the
course of an advertisement. The ad likely implies that the endorser is a medical doctor
with substantial experience in the area of hearing. If the endorser is not a medical doctor
with substantial experience in audiology, the endorsement would likely be deceptive. A
non-medical “doctor” (e.g., an individual with a Ph.D. in exercise physiology) or a
physician without substantial experience in the area of hearing can endorse the product, but
if the endorser is referred to as “doctor,” the advertisement must make clear the nature and
limits of the endorser’s expertise.
Example 3: A manufacturer of automobile parts advertises that its products are approved
by the “American Institute of Science.” From its name, consumers would infer that the
“American Institute of Science” is a bona fide independent testing organization with
expertise in judging automobile parts and that, as such, it would not approve any
automobile part without first testing its efficacy by means of valid scientific methods. If
the American Institute of Science is not such a bona fide independent testing organization(e.g., if it was established and operated by an automotive parts manufacturer), the
endorsement would be deceptive. Even if the American Institute of Science is an
independent bona fide expert testing organization, the endorsement may nevertheless be
deceptive unless the Institute has conducted valid scientific tests of the advertised products
and the test results support the endorsement message.
Example 4: A manufacturer of a non-prescription drug product represents that its product
has been selected over competing products by a large metropolitan hospital. The hospital
has selected the product because the manufacturer, unlike its competitors, has packaged
each dose of the product separately. This package form is not generally available to the
public. Under the circumstances, the endorsement would be deceptive because the basis
for the hospital’s choice – convenience of packaging – is neither relevant nor available to
consumers, and the basis for the hospital’s decision is not disclosed to consumers.
Example 5: A woman who is identified as the president of a commercial “home cleaning
service” states in a television advertisement that the service uses a particular brand of
cleanser, instead of leading competitors it has tried, because of this brand’s performance.
Because cleaning services extensively use cleansers in the course of their business, the ad
likely conveys that the president has knowledge superior to that of ordinary consumers.
Accordingly, the president’s statement will be deemed to be an expert endorsement. The
service must, of course, actually use the endorsed cleanser. In addition, because the
advertisement implies that the cleaning service has experience with a reasonable number of
leading competitors to the advertised cleanser, the service must, in fact, have such
experience, and, on the basis of its expertise, it must have determined that the cleaning
ability of the endorsed cleanser is at least equal (or superior, if such is the net impression
conveyed by the advertisement) to that of leading competitors’ products with which the
service has had experience and which remain reasonably available to it. Because in this
example the cleaning service’s president makes no mention that the endorsed cleanser was
“chosen,” “selected,” or otherwise evaluated in side-by-side comparisons against its
competitors, it is sufficient if the service has relied solely upon its accumulated experience
in evaluating cleansers without having performed side-by-side or scientific comparisons.
Example 6: A medical doctor states in an advertisement for a drug that the product will
safely allow consumers to lower their cholesterol by 50 points. If the materials the doctor
reviewed were merely letters from satisfied consumers or the results of a rodent study, the
endorsement would likely be deceptive because those materials are not what others with
the same degree of expertise would consider adequate to support this conclusion about the
product’s safety and efficacy.
§ 255.4 Endorsements by organizations.
Endorsements by organizations, especially expert ones, are viewed as representing the judgment of
a group whose collective experience exceeds that of any individual member, and whose judgments
are generally free of the sort of subjective factors that vary from individual to individual.
Therefore, an organization’s endorsement must be reached by a process sufficient to ensure that
the endorsement fairly reflects the collective judgment of the organization. Moreover, if an
organization is represented as being expert, then, in conjunction with a proper exercise of itsexpertise in evaluating the product under § 255.3 (expert endorsements), it must utilize an expert
or experts recognized as such by the organization or standards previously adopted by the
organization and suitable for judging the relevant merits of such products. [See § 255.1(d)
regarding the liability of endorsers.]
Example: A mattress seller advertises that its product is endorsed by a chiropractic
association. Because the association would be regarded as expert with respect to judging
mattresses, its endorsement must be supported by an evaluation by an expert or experts
recognized as such by the organization, or by compliance with standards previously
adopted by the organization and aimed at measuring the performance of mattresses in
general and not designed with the unique features of the advertised mattress in mind.
§ 255.5 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. For example,
when an endorser who appears in a television commercial is neither represented in the
advertisement as an expert nor is known to a significant portion of the viewing public, then the
advertiser should clearly and conspicuously disclose either the payment or promise of
compensation prior to and in exchange for the endorsement or the fact that the endorser knew or
had reason to know or to believe that if the endorsement favored the advertised product some
benefit, such as an appearance on television, would be extended to the endorser. Additional
guidance, including guidance concerning endorsements made through other media, is provided by
the examples below.
Example 1: A drug company commissions research on its product by an outside
organization. The drug company determines the overall subject of the research (e.g., to test
the efficacy of a newly developed product) and pays a substantial share of the expenses of
the research project, but the research organization determines the protocol for the study and
is responsible for conducting it. A subsequent advertisement by the drug company
mentions the research results as the “findings” of that research organization. Although the
design and conduct of the research project are controlled by the outside research
organization, the weight consumers place on the reported results could be materially
affected by knowing that the advertiser had funded the project. Therefore, the advertiser’s
payment of expenses to the research organization should be disclosed in this advertisement.
Example 2: A film star endorses a particular food product. The endorsement regards only
points of taste and individual preference. This endorsement must, of course, comply with §
255.1; but regardless of whether the star’s compensation for the commercial is a $1 million
cash payment or a royalty for each product sold by the advertiser during the next year, no
disclosure is required because such payments likely are ordinarily expected by viewers.
Example 3: During an appearance by a well-known professional tennis player on a
television talk show, the host comments that the past few months have been the best of her
career and during this time she has risen to her highest level ever in the rankings. She
responds by attributing the improvement in her game to the fact that she is seeing the ballbetter than she used to, ever since having laser vision correction surgery at a clinic that she
identifies by name. She continues talking about the ease of the procedure, the kindness of
the clinic’s doctors, her speedy recovery, and how she can now engage in a variety of
activities without glasses, including driving at night. The athlete does not disclose that,
even though she does not appear in commercials for the clinic, she has a contractual
relationship with it, and her contract pays her for speaking publicly about her surgery when
she can do so. Consumers might not realize that a celebrity discussing a medical procedure
in a television interview has been paid for doing so, and knowledge of such payments
would likely affect the weight or credibility consumers give to the celebrity’s endorsement.
Without a clear and conspicuous disclosure that the athlete has been engaged as a
spokesperson for the clinic, this endorsement is likely to be deceptive. Furthermore, if
consumers are likely to take away from her story that her experience was typical of those
who undergo the same procedure at the clinic, the advertiser must have substantiation for
that claim.
Assume that instead of speaking about the clinic in a television interview, the tennis player
touts the results of her surgery – mentioning the clinic by name – on a social networking
site that allows her fans to read in real time what is happening in her life. Given the nature
of the medium in which her endorsement is disseminated, consumers might not realize that
she is a paid endorser. Because that information might affect the weight consumers give to
her endorsement, her relationship with the clinic should be disclosed.
Assume that during that same television interview, the tennis player is wearing clothes
bearing the insignia of an athletic wear company with whom she also has an endorsement
contract. Although this contract requires that she wear the company’s clothes not only on
the court but also in public appearances, when possible, she does not mention them or the
company during her appearance on the show. No disclosure is required because no
representation is being made about the clothes in this context.
Example 4: An ad for an anti-snoring product features a physician who says that he has
seen dozens of products come on the market over the years and, in his opinion, this is the
best ever. Consumers would expect the physician to be reasonably compensated for his
appearance in the ad. Consumers are unlikely, however, to expect that the physician
receives a percentage of gross product sales or that he owns part of the company, and either
of these facts would likely materially affect the credibility that consumers attach to the
endorsement. Accordingly, the advertisement should clearly and conspicuously disclose
such a connection between the company and the physician.
Example 5: An actual patron of a restaurant, who is neither known to the public nor
presented as an expert, is shown seated at the counter. He is asked for his “spontaneous”
opinion of a new food product served in the restaurant. Assume, first, that the advertiser
had posted a sign on the door of the restaurant informing all who entered that day that
patrons would be interviewed by the advertiser as part of its TV promotion of its new soy
protein “steak.” This notification would materially affect the weight or credibility of the
patron’s endorsement, and, therefore, viewers of the advertisement should be clearly and
conspicuously informed of the circumstances under which the endorsement was obtained.Assume, in the alternative, that the advertiser had not posted a sign on the door of the
restaurant, but had informed all interviewed customers of the “hidden camera” only after
interviews were completed and the customers had no reason to know or believe that their
response was being recorded for use in an advertisement. Even if patrons were also told
that they would be paid for allowing the use of their opinions in advertising, these facts
need not be disclosed.
Example 6: An infomercial producer wants to include consumer endorsements for an
automotive additive product featured in her commercial, but because the product has not
yet been sold, there are no consumer users. The producer’s staff reviews the profiles of
individuals interested in working as “extras” in commercials and identifies several who are
interested in automobiles. The extras are asked to use the product for several weeks and
then report back to the producer. They are told that if they are selected to endorse the
product in the producer’s infomercial, they will receive a small payment. Viewers would
not expect that these “consumer endorsers” are actors who were asked to use the product so
that they could appear in the commercial or that they were compensated. Because the
advertisement fails to disclose these facts, it is deceptive.
Example 7: A college student who has earned a reputation as a video game expert
maintains a personal weblog or “blog” where he posts entries about his gaming
experiences. Readers of his blog frequently seek his opinions about video game hardware
and software. As it has done in the past, the manufacturer of a newly released video game
system sends the student a free copy of the system and asks him to write about it on his
blog. He tests the new gaming system and writes a favorable review. Because his review is
disseminated via a form of consumer-generated media in which his relationship to the
advertiser is not inherently obvious, readers are unlikely to know that he has received the
video game system free of charge in exchange for his review of the product, and given the
value of the video game system, this fact likely would materially affect the credibility they
attach to his endorsement. Accordingly, the blogger should clearly and conspicuously
disclose that he received the gaming system free of charge. The manufacturer should
advise him at the time it provides the gaming system that this connection should be
disclosed, and it should have procedures in place to try to monitor his postings for
compliance.
Example 8: An online message board designated for discussions of new music download
technology is frequented by MP3 player enthusiasts. They exchange information about
new products, utilities, and the functionality of numerous playback devices. Unbeknownst
to the message board community, an employee of a leading playback device manufacturer
has been posting messages on the discussion board promoting the manufacturer’s product.
Knowledge of this poster’s employment likely would affect the weight or credibility of her
endorsement. Therefore, the poster should clearly and conspicuously disclose her
relationship to the manufacturer to members and readers of the message board.
Example 9: A young man signs up to be part of a “street team” program in which points
are awarded each time a team member talks to his or her friends about a particular
advertiser’s products. Team members can then exchange their points for prizes, such as
concert tickets or electronics. These incentives would materially affect the weight or
credibility of the team member’s endorsements. They should be clearly and conspicuously
disclosed, and the advertiser should take steps to ensure that these disclosures are being
provided.