New FTC Guidelines for Endorsements and Testimonials in Advertising
December 4, 2009
Slightly behind the times but I just had to mention this - on December 1st the new FTC regulations [announcement here, actual guideline legalese here] went into effect.
All in all I think it’s a fantastic move by the FTC. These guidelines, which give interpretational direction regarding the FTC Act, are a big step in the direction of dealing with novel (well, novel since 1980, which is the last time these guidelines were updated) ways endorsements and testimonials are used in advertising.
And I for one am happy to hear there might be an end to the following:
- those annoying “Lose 50 pounds in a month with SlimQuick” ads where at the bottom, in teeny tiny font, you see “results not typical.”
- Bloggers who appear to be writing for fun (i.e. people like me) who you later find out were paid to write that glowing review of that new restaurant you were thinking about trying out.
- Facial potion and lotion ads where you get a “doctor” saying that “clinical trials” show that the product reduces wrinkles in 6 weeks. (Where the “doctor” is really a PhD in creative writing and the clinical trials consisted of a completely shit-ily designed experiment on rats.)
- And, yes, “shit-ily” is a technical term.
- An ad where a doctor says he always recommends X for cholesterol (where it turns out the doctor is a co-founder of the company producing X).
Ugh ugh ugh! Even writing out those examples gets me all flustered! It’s so ridiculous I have a hard time understanding why on earth it was allowed to persist for as long as it was. I’m no lawyer (yet!), but I have a seriously difficult time understanding how some of this isn’t tantamount to fraud.
But, anyway, a few highlights from the actual guidelines:
Definitions:
- endorsement = “any advertising message that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertisers, even if the views expressed by that party are identical to those of the sponsoring advertiser”
- endorser = “The party whose opinions, beliefs, findings, or experience the message appears to reflect” [this can be an individual, group, institution, etc.]
- expert = “individual, group, or institution possessing, as a result of experience, study, or training, knowledge of a particular subject” that’s superior to what your average Joe would know or acquire.
More Interesting Stuff:
- An endorser cannot represent the product in a way that, if the advertiser represented it that way, would be deceptive. (Think of Britney Spears saying “I used SlimQuick and lost 20 pounds in a week! This product is a wonder drug!” where the average weight loss from the product is a pound a month)
- The following footnote on the whole “results not typical” debacle, “The Commission tested the communication of 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…”
- Yes!
- If you lost 100 pounds in 6 months using SlimQuick while also only eating “raw vegetables and exercising vigorously for six hours at the gym” then an ad that says “Betty lost 100 pounds in 6 months on SlimQuick together with diet and exercise” would be misleading because it does not “adequately alert consumers to the truly remarkable circumstances leading to her weight loss".
- (aka: Betty went nuts, pretty much stopped eating, and dropped a bunch of weight, and 99.99999% of people aren’t going to think that’s what it means to say “lose 100 pounds in 6 months on SlimQuick.”)
- When a connection between the endorser and advertised product isn’t obvious and might materially affect the credibility of that endorsement, it has to be disclosed.
- Think of a blogger where you’d never know she was being sent the products to review or a celebrity on a talk show who casually mentions how much she loves Soda X, where she gets paid every time she mentions the product during publicity events.)
- If you are getting paid to tweet or post status updates on Facebook and the like, you’ve got to disclose it.
- If you write on a message board about a topic but you are employed by a company who makes that product (or is a competitor of that product, etc.), you’ve got to disclose that to.
- I wonder if that means both if you are writing in your capacity as an employee or agent of that company and if you’re writing on your own free time.
- How you are paid to endorse something matters
- The credibility of your endorsement might change based on if you’re paid one lump sum to endorse the product, if you’re given 10% of all gross profits off that product for the next year, or if you are a shareholder in that company and, accordingly, consumers should be given that information.
Short version: “don’t go around trying to deceive people with wild claims or by trying to make it look like someone is endorsing your product out of love (and not money) – it’s messed up.”
Shorter version: “don’t be a slime ball”
Sounds good to me!
Comments
4 Responses to “New FTC Guidelines for Endorsements and Testimonials in Advertising”
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Ugh! Freak’n slime balls!
I know all about “shitty” rat experiments….
When it comes to full disclosure in tweets, facebook, blogs, etc is there any discussion on liability? Is just the poster responsible for following guidelines, or can Twitter, Facebook, or the company that hosts your blog be held accountable for what gets posted?
Chris
Chris,
I believe Section 203 of the Communications Decency Act of 1996 generally protects these services,
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The EFF has some good information on this: http://www.eff.org/issues/bloggers/legal/liability/230
As does Wiki: http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act
That’s awesome! It’s about time. I hate those annoying ads, especially the ones that show up on the side of a webpage that say “lose 20 lbs in 1 day!”
Thanks for sharing