The Federal Trade Commission is seeking public comments on whether it should make changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guides”). The Endorsement Guides were last updated substantially in 2009.
The FTC is asking for input on a wide variety of issues related to endorsements and testimonials. These include: whether the practices addressed by the Endorsement Guides are prevalent in the marketplace; whether certain provisions should be eliminated; whether the Endorsement Guides effectively address unfair or deceptive practices involving endorsements; whether changes in technology or the economy require changes to the Endorsement Guides; how well advertisers and endorsers are disclosing material connections in social media and whether consumers understand these disclosures; whether children are capable of understanding disclosures of material connections and how those disclosures might affect children; whether composite ratings that include reviews based on incentives are misleading even when reviewers disclose the incentives in the underlying reviews; and whether the Endorsement Guides should address the use of affiliate links by endorsers.
The current Enforcement Guides advise advertisers to include clear and conspicuous disclosures when there is a connection between an endorser and a seller or producer of an advertised product or service, and that connection could affect the weight or credibility of the endorsement. The FTC requires endorsements to reflect the honest opinions, findings, beliefs or experiences of the endorser. Endorsements may not contain representations that are deceptive or could not be substantiated if made directly by the advertiser. If a specific endorsement is not representative of results a typical consumer can expect to achieve, a disclaimer to this effect is required.
Endorsements and testimonials are broadly defined by the FTC and include any message that consumers are likely to believe reflects the opinions, beliefs, findings or experiences of a party other than the advertiser. This definition encompasses “user” reviews posted on social media sites like Instagram or Twitter.
Given the broad nature of the inquiry, it is likely that the FTC will revise certain aspects of the Endorsement Guides. It is also likely that consumer groups will file comments encouraging the FTC to strengthen the Endorsement Guides.
Comments must be filed with the FTC by April 21, 2020.