Consumer Law

The Federal Trade Commission is seeking comments on proposed revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising. Endorsements and testimonials are advertising messages that consumers are likely to believe reflect the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser. The Commission promulgated the Guides in 1980 and the proposed revisions are part of its ongoing regulatory review process.

The most significant revision relates to "disclaimers of typicality." The Commission has long believed that an endorsement implies that the experiences or results of the endorser are typical or representative of the results that consumers will achieve generally. Based on its enforcement actions and consumer research conducted as part of its review of the Guides, the Commission has concluded that disclaimers such as "results not typical" or "results may vary" are ineffective at dispelling this implied message. Under the proposed Guides, the Commission makes clear that an advertiser should possess adequate substantiation for the implied representation that the experiences of the endorser are typical of what consumers will obtain, or clearly and conspicuously disclose the results that consumers can expect to achieve and have adequate substantiation for that representation. This disclosure is far more comprehensive than "results may vary." For example, an advertiser of a weight loss product that could not support a claim that users would typically lose 20 pounds just like the endorser, would need to clearly and conspicuously disclose how many pounds the typical user would expect to lose and have a reasonable basis for that claim. The Commission does not rule out the possibility that a disclaimer of typicality could be effective, but states that advertiser must have data to prove that the net impression of ad is non-deceptive.

The Commission asks for comments by January 30, 2009.