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FTC Testimonial – Advertising Guidelines

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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

Download FTC’s Facts for Business https://www.ftc.gov/tips-advice/business-center/advertising-and-marketing

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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 soused, 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 fruit

and 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’sexterior 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 o 1 f advertisements containing testimonials

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’s

experience, 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 its

expertise 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 ball

better 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.

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