The Federal Trade Commission (“FTC”) is seeking public comment on proposed changes to its guides regarding the use of endorsements and testimonials in advertising. The FTC’s guides are advisory in nature and intended to help businesses comply with the laws administered by the FTC.
Endorsements and advertisements are broadly defined to mean any advertising message that a consumer might believe reflects the opinions, beliefs, findings, or experiences of a third party. 16 CFR § 255.0. Currently, FTC guidelines state that endorsements must reflect the honest opinions, findings, beliefs, or experiences of the endorser. 16 CFR § 255.1. Endorsements may not contain any representation that is misleading or unsubstantiated. ID. If the endorser’s experience is not generally representative, the advertisement should clearly and prominently state what the generally expected performance should be. 16 CFR 255.2. And where there is a connection between the endorser and the advertiser, that connection must be fully disclosed. 16 CFR 255.5.
Many of the proposed changes are simply clarifications or modifications of illustrative examples. Other changes establish principles that were not previously present in the guidelines. The FTC has proposed the following notable changes to its guides:
- revise the definition of endorsement to include marketing and promotional messages. Social media tags may also be considered endorsements under the proposed guidelines;
- amend the definition of “product” to include “brand”;
- clarify that “clear and visible” disclosure means disclosure that “is hard to miss (i.e. easily noticeable) and easily understood by ordinary consumers;”
- add that endorsements in advertisements aimed at children may be of particular concern due to the nature of the audience. Practices that would not normally be challenged in advertisements aimed at adults could be challenged in advertisements aimed at children;
- note that where a claim in an advertisement is visual, the required disclosures must be at least visual. Where the allegation is audible, the disclosures must be at least audible;
- explain that endorsers, not just advertisers, can be held liable for their statements, such as when they make statements they know or ought to know are misleading;
- provide that use of the likeness of a person who is not the actual endorser is misleading if it misrepresents a material attribute; and
- specify that disclosures of the relationship between advertisers and endorsers must be “clear and visible”;
Comments regarding the proposed changes should be received no later than September 26, 2022. Comments titled “P204500 Approval Guides” may be submitted to https://www.regulations.gov.