Every year, we look forward to the Super Bowl.  For the commercials.  Our friends and family laugh at us, but they get it since advertising law is what we do.  This year, when the game did not prove to be an equal match up, after exhausting the wing and nacho bowl, many others turned to commercials as their prime source of entertainment (after Bruno Mars of course – we were doubters but he owned that stage!)  Our children became proud of what we did (that is until we explained that in our jobs we were mostly responsible for the fine print at the bottom of the screen).  As every year we look for a theme and this year we did not have to look far.  The ads were filled with celebrities.  Stephen Colbert’s head cracking open like a pistachio;  Naked David Beckham losing his H&M skivvies; a Full House reunion for Dannon; Scarlett Johansson sexily slurping her SodaStream; Jason Statham blasting and jumping out of a plane on his way to enjoy his Xfinity; Tim Tebow without a contract for T-Mobile; and John Krasinski for e-Insurance.  And most of the car companies led with a famous face: Terry Crews finding joy in music with the Muppets in a Toyota Highlander;  Laurence Fishburne reprising his Matrix role of Morpheus for Kia; Bob Dylan and Chrysler; Johnny Galecki in his Hyundai Big Bang striking out with the lady in the car next to him; Audi and the Doberhuahua feat. Sarah McLachhlan‎, and Bruce Willis for safe Honda cars.  And then there was the anti-celebrity ad run by T-Mobile.

Celebrity endorsements are nothing new but raise some issues brands should consider, many discussed on the FTC’s Endorsement Guides. When featured on a television ad the connection between the brand and spokesperson is often clear, and reasonable consumers know the famous faces got paid for their work. If the ‎arrangement between a brand and celebrity goes farther and the celebrity agrees to promote the product via social media or during press engagements, it is less likely a consumer would appreciate that the endorsement was paid.  Brands will want to make clear in their contracts with celebrities that a disclosure should be made with each endorsement.  Having a writing is not the only key step; engaging in reasonable compliance checks to make sure the celebrity is making clear he or she is paid by the brand is also important. With social media, the disclosure should come right up front, with a tweet beginning with ‎#ad or #sponsored. The FTC believes this will make it more likely when a celebrity’s message is shared that the fact that it is a promotional message will more likely be shared as well if it appears right away.  It is also always appropriate to weave in the connection to the message itself (e.g., “happy to work with Brand X to highlight their great innovation!”)  The FTC’s Guides also say an endorsement can arise by a visual image.  The example they use is of an ad for golf balls with a professional golfer shown practicing with the balls.  The FTC says this would be an endorsement even if the pro makes no verbal statement in the ad. And in infomercials, if a celebrity is demonstrating a product, even if reading from a script, some reasonable consumers might believe the actor is sharing personal views and the connection to the marketer should be disclosed.  Celebrities as well as marketers can have liability if a connection is not adequately disclosed, although the FTC has not brought a case against a star in some time.

And to all of those brands out there that spent $4 million for 30 seconds of our Super Bowl viewing time, we thank you.  Randy and Amy do not play favorites like some publishers, but will suffice to say it was a great night watching the advertisers’ Big Game.