By Alan Graner
Part 1 discussed general FTC http://www.dsprel.com/ftc-full-disclosure-rules-part-1-general-considerations/ discussed considerations for endorsements in general.
The FTC Guides
On December 1, 2009, the Federal Trade Commission (FTC) published its Guides Concerning the use of Endorsements and Testimonials in Advertising, (www.ftc.gov/opa/2009/10/endortest.shtm), its first update since the 1980 Guides.
However, these are guides, not laws. It’s up to the FTC to determine what an endorsement is and whether it violates the Guides.
What is an “endorsement”?
Basically any advertising message that consumers believe truly reflect the endorser’s opinions and experiences. In the Guides, the FTC considers testimonials to be endorsements.
Let us bid a fond farewell to Mel B. of Huntsville, Alabama and Dorothy G. of Laramie, Wyoming. Over the years, Mel, Dorothy and their ilk “endorsed” all sorts of products and services, many of which were somewhat, er, dubious.
Alas, they are no more (assuming they ever existed). According to the new FTC Guides, endorsers must be real consumers, and the advertiser must back their claims.
Here are some rules from Section 255.2, Consumer Endorsements, of the FTC Guides:
(a) If an ad includes endorsements by one or more consumers, the product or services they endorse better work as claimed. The advertiser must be able to back those claims with adequate substantiation, evidence or reports.
A brochure for a baldness treatment consists entirely of testimonials by satisfied customers who claim the treatment not only worked, the new growth was as thick and as strong as when they were teenagers. The advertiser must have reliable scientific evidence to support these claims.
(b) If an ad features the experiences of one or more consumers on a key attribute of the product or service, it must represent what an average consumer can expect to obtain. Again, the advertiser must substantiate those claims.
Let’s say you advertise a weight loss program. One person lost 150 pounds, another 120 pounds, a third 95 pounds…and everybody else lost about 10 pounds. In the past you’d feature the three big weight losers along with the disclaimer *Results not typical.” This is no longer allowed.
If the advertiser can’t substantiate the endorser’s experience is typical, the ad must clearly and conspicuously disclose the generally expected performance in the depicted circumstances and back the claim with adequate substantiation.
An ad features a woman who claims she reduced her weight from 250 to 140 pounds in six months by drinking the advertiser’s product, eating only raw vegetables and regularly exercising six hours at the gym. Since this represents an actual experience and is typical for anyone following the same regimen, the ad is legitimate.
However, if she said she lost the weight by drinking the product along with diet and exercise—without detailing the vigorous effort—the ad can considered deceptive.
If you run an affiliate program and one person puts forth an extraordinary effort to earn $2,500 in one month while most everyone else earns less than $100, you can’t feature the big earner unless you detail exactly what s/he did to achieve that goal, thereby indicating the $2,500 may be typical for such a heroic effort but not for ordinary efforts.
Note: if you run an affiliate program, you may be liable if some of your affiliates make such exaggerated claims. Check with your lawyer.
(c) If the ad claims the endorsers are “actual consumers,” they better be. If not, that fact must be conspicuously disclosed.
One recent TV spot featured a man dressed as a doctor who stated: “I’m not a doctor, but I play one on television.” This is legit.
What’s your take?
Next: FTC full disclosure rules Part 3: Expert endorsements
Image: Jamie via Flickr®
Alan Graner is Chief Creative Officer at Daly-Swartz Public Relations, an Orange County, CA business marketing content and distribution firm. For content that makes you stick out from the crowd, email Jeffrey Swartz at email@example.com. Or visit www.dsprel.com.