FTC sets out rules for testimonials in marketing

The commission, which has released a revised version of its guides, said comments must be received by January 30 2009.

The Guides Concerning the Use of Endorsements and Testimonials in Advertising are designed to help product marketers voluntarily comply with legal advertising requirements. They outline the general principals the agency will use in evaluating endorsements and testimonials, and provide examples that illustrate the application of these principals.

FTC works together with the US Food and Drug Administration (FDA) in regulating the marketing of food and dietary supplement. Although there is some overlap, FDA tends to regulate the use of health claims on product labels, while FTC handles claims made in product advertising.

Use of testimonials​

Testimonials or endorsements are a marketing measure used frequently in the US, particularly for dietary supplement products.

FTC defines testimonials and endorsements broadly as meaning any advertising message that consumers are likely to believe reflects the opinions, beliefs, findings, or experience of a party other than the advertiser.

In the past, the use of testimonials has been a particularly sensitive issue, as they have often constituted statements that could not be backed up by adequate substantiation, and would therefore mislead consumers.

Revised Guides​

The current revised document follow the publication in January 2007 of a Federal Register notice that sought initial comments on the costs, benefits, regulatory and economic impact of FTC’s guides (72 Fed. Reg.2214, Jan.18, 2007).

Further to the 22 comments received, FTC has made some modifications to the guides, and is now calling for additional comment.

One of the main issues raised is the use of consumer endorsements; the proposed revisions state that testimonials that do not describe typical consumer experiences should be accompanied by “clear and conspicuous disclosure” ​of the results consumers can generally expect to achieve from the advertised product or program.

Other issues addressed in the proposed revisions include expert endorsements, endorsement by organizations, and disclosure of material connections between advertisers and endorsers.

Past actions​

In recent years, FTC has brought a number of enforcement actions against marketers for deceptive advertising containing consumer endorsements.

Many of these endorsements have been accompanied by statements that claim to inform consumers that the experiences of the featured endorsers are not representative of what consumers can expect.

However, FTC has noted that the disclosures are often buried in fine print footnotes or flashed as video superscripts too quickly for consumers to read them.

“Not only are the disclosures far from clear and conspicuous, but usually they merely say ‘results not typical’ or ‘results may vary’ or similar statements that do little to inform consumers how rare or extreme the featured results are,”​ write FTC in its guides.

To access the full text of the Federal Register notice, click here​.