FTC Seeks to Revise Use of Ad-Based Endorsements and Testimonials

Washington, DC (Nov. 28)-The Federal Trade Commission (FTC) is seeking public comment on proposed revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising. The current guides, 16 CFR Part 255, were issued in 1972 and are designed to assist businesses, including the pharmaceutical industry, and others conform their endorsement and testimonial advertising practices to the requirements of Section 5 of the FTC Act, according to the Commission’s Nov. 28 Federal Register posting.

In January 2007, as part of its ongoing regulatory review process, FTC published a Federal Register notice seeking comment on the overall costs, benefits, and regulatory and economic impact of the guides. FTC received 22 comments and is now proposing various amendments.

The current guides state that endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser and may not contain any representations that would be deceptive, or could not be substantiated, if made directly by the advertiser. One of the primary changes is to apply the guides’ practices to televised interviews. For example, if a celebrity spokesperson endorses by name a product during a TV interview, it must be made clear that the celebrity is a paid spokesperson for the company or product.

Endorsements about a product’s efficacy must also be based on “adequate substantiation,” according to the new guides’ proposals. Endorsers presented as “experts” must also have qualifications that give the endorser the expertise he or she is represented as presenting. In addition, endorsers of products who are represented as bona fide users of the products they are representing must in fact be users of the product-and once it’s clear that an endorser has stopped being a bona fide user of the product, the advertisements that represent the endorser as such can no longer be run.

Read the full FTC proposal, including explanations of the 22 comments received since 2007, in the Nov. 28Federal Register.

Comments on the revised propsoals are due on Jan. 30, 2009 and can be submitted electronically here.