US television network guidelines require that when a commercial demonstrates the attributes of a product, the demonstration be performed with actual examples of the product as available to consumers and the results be accurately represented. The use of mock-ups or enhanced or altered products is not permitted.
Demonstrations should depict product performance in a way that accurately reflects how the product performs when used by consumers. However, when a demonstration simulates consumer-use conditions (eg, a laboratory simulation of clogged drains or kitchen countertop grease), the advertiser must:
- provide clear and convincing evidence that the simulation accurately reflects the product's performance under actual consumer-use conditions; and
- establish the impracticality or impossibility of demonstrating a product's performance under actual consumer-use conditions.
No demonstration should be presented in a manner that, through artifice or simulation, misleads the audience as to any material fact.
Producers must provide the networks with an affidavit of authenticity for all demonstrations, and should be prepared to produce records of the circumstances and results upon request. The affidavit must attest that:
- the demonstration is accurate;
- the demonstration was performed with samples of the product available to consumers or prototypes that perform no differently from the actual product; and
- no mock-ups, modifications or alternations were employed.
Material facts that are essential to a full understanding of the significance of the demonstration (eg, miles per hour, actual time elapsed) must be disclosed.
The networks require that product demonstrations be accurately represented and not be misleading to the consumer. Companies with plans to create advertising that features a product demonstration should thus make sure that their creative teams comply with the network guidelines. When in doubt, ask questions: the network editors are there to answer any questions you may have.
For further information on this topic please contact Marilyn R Colaninno or Joseph I Rosenbaum at Reed Smith LLP by telephone (+1 212 521 5400), fax (+1 212 521 5450) or email (firstname.lastname@example.org). The Reed Smith website can be accessed at www.reedsmith.com.