The Important Legal Difference Between Being A Celebrity Endorser & Just A Famous Face In An Ad
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Technically speaking, a spokesperson is an individual who makes statements on behalf of another individual or a group. An endorser is a person who declares their truthful personal public approval or support of a product or service.
So the real difference between the two comes down to the spokesperson’s actual opinion on a product.
But since spokespeople rarely show up in ads to say “I don’t like this cereal but my friends say it’s awesome,” how do you draw the line between a positive statement that is just being read by a spokesperson and one that espouses that person’s purported feelings?
Take the example of WordSmart, a company that recently settled deceptive advertising charges with the Federal Trade Commission.
The product promised that children who use WordSmart would see significantly improved test scores, and to hammer the brainy aspect of the product home, the company’s infomercials used Jeopardy’s Alex Trebek.
In the commercials, Trebek opines about WordSmart’s popularity with families and students, but he doesn’t explicitly say that the product helped him — or that he ever used the product himself.
Compare that to ads for Nutrisystem, which use celebrities like Osmond and former NFL quarterback Dan Marino to talk up the company’s weight-loss products.
In his ads, Marino tells viewers how the weight loss program helped him lose 22 pounds and get down to his previous playing weight.
Although both Trebek and Marino are undoubtedly being paid well for their appearances, there is a big difference in the videos.
Trebek is acting as a spokesperson, because he doesn’t explicitly say that he’s used the product and seen favorable results.
Marino, on the other hand, is acting as an endorser for Nutrisystem. He’s relaying his personal results and experiences to viewers.
Knowing what sets spokespeople and endorsers apart is great, but why should we even care?
Well, for one thing, companies use celebrities in their commercials as a way to build trust and increase sales. So the deceptive use of a celebrity could harm consumers – or at least their pocketbooks.
After all, some people tend to place some amount of faith in celebrities. So if your favorite celebrity is shilling a new product, you may be more likely to think about running out to buy that product than if its commercials featured an unfamiliar face.
A study from researchers at the University of Colorado Boulder found that for the most part consumers attached their feeling for a celebrity to the product they’re are selling.
Take Trebek for example; he’s a well-known quiz show host. For nearly 30 years he’s been quizzing the brightest minds (and some celebrities) in the world. His appearance every weeknight on millions of televisions has built trust with consumers. So who wouldn’t take him at his word?
In fact, a 2011 study [PDF] from Harvard Business School found that sales of products endorsed by famous athletes increased on average by 4%. While that might not be a huge boost in sales, it’s an increase nonetheless.
When it comes to promoting products, it’s not unheard of for companies to push the limits of the truth to show off their brand in the most flattering light. This is why the Federal Trade Commission regularly enforces rules that prohibit deceptive advertising practices.
And when an advertiser stretches the truth too far, the FTC might also hold a product’s endorser partly responsible for the deception if they knew the ad to be untruthful, or if they provided testimony about a product that they themselves didn’t believe to be true.
The FTC could find the individual liable if he or she had the ability to step in, changing the outcome of an advertisement, or if they were willing participants in the deceptive ad.
For the most part, proving liability hinges on the the FTC’s ability to prove that the endorser is not relaying their truthful beliefs about a product; meaning if an endorser says they lost 50 pounds using a product, they must have lost 50 pounds using that product.
Such was the case in early 2000 when the FTC lodged a complaint against Enforma, a company selling two weight-loss products that supposedly allowed consumers to eat whatever they wanted while still losing weight.
Infomercials for the “Fat Trapper” and “Exercise in a Bottle” featured former Major League Baseball player Steve Garvey.
The ad contained video footage of people in bathing suits stuffing their faces with an enormous amount of food, but because of the supposed fat blockers in the product, they wouldn’t gain any weight — at least according to the commercial.
“Look at all these delicious supposedly forbidden foods; barbecued chicken and ribs, buttered biscuits,” Garvey says in the ad. “Foods you can eat when you crave them without guilt, without worry, and it’s all because of a few little capsules.”
In the commercials, Garvey explained that he and his wife (who had just had a baby) had favorable results with the product.
The agency charged that Garvey should have known that the weight loss claims purported in the ads were false and too extreme to be true.
The FTC charged that Enforma and it’s participants were liable for making false and unsubstantiated advertising claims.
While Enforma settled the FTC’s charges, providing $10 million in consumer redress, Garvey refused and took the lawsuit to court.
Ultimately the 9th Circuit Court determined that Garvey was not liable because he exercised proper due diligence. The court ruled that the pamphlets Garvey received about the products and given that he had lost weight around the time the commercial was produced was enough to prove his personal experience was truthful.
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