We were taking a look at the new FTC guidelines governing endorsements and testimonials when we noticed something interesting. Advertisers will no longer be able to get away with showing only amazing results from consumer testimonials and presenting them as typical. Under the old rule, they could exclusively show spectacular results if they added the phrase “results not typical.” This is no longer the case, according to the FTC. Now, if they use such testimonials, they will also have to disclose the results that consumers can reasonably expect.
From the FTC:
Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results not typical” – the revised Guides no longer contain this safe harbor.
What this means in practice is that from now on, advertisers who use customer testimonials in their ads will be on the same legal footing as those who make product claims themselves.
In its guidelines, the FTC acknowledges that critics are concerned that the new rule might have a “chilling effect” on the free speech of advertisers, but ultimately concluded that the addition of more or larger disclaimers wouldn’t solve the problem and that even legal footing for testimonials “will not impermissibly chill truthful speech in violation of the First Amendment.”
The FTC says:
The critical question for determining whether an ad is deceptive under Section 5 of the FTC Act – for all advertising, whether or not testimonials are involved – is what is the net impression consumers take away from the ad as a whole.
The revised language in Section 255.2 would come into play only if a truthful testimonial: (1) conveys to consumers that the testimonialist’s results are “representative of what consumers will generally achieve with the advertised product or service in actual, albeit variable, conditions of use”; and (2) the advertiser does not have adequate substantiation for that claim.
So it seems like all spectacularly amazing and unusual results will need to be clearly portrayed as spectacularly amazing and unusual from now on. Acting like the results are normal and slapping “results not typical” underneath isn’t going to cut it. Seems like it’ll be a real headache for infomercial producers.
Here’s the final word on the matter from the FTC (emphasis ours):
The effect of the revision at issue is to treat ads that use testimonials the same as all other ads. Section 5 of the FTC Act requires advertisers to have substantiation for the messages that consumers reasonably take from their ads, which means they must first know what messages consumers take away from those ads. The Commission sees no reason why an advertiser should be exempt from those basic obligations simply because it chooses to communicate its claims through the use of testimonials; yet, that is precisely the effect of the safe harbor afforded by the 1980 Guides. Accordingly, the Commission concludes that the safe harbor for non-typical testimonials accompanied by disclaimers of typicality should be eliminated.