Issued in 1972 and revised in 1980, the Federal Trade Commission’s (FTC) Guides Concerning the Use of Endorsements and Testimonials (Guides) in Advertising assists with compliance and enforcement of deceptive advertising practices. Now, for the first time in almost 30 years, the FTC has issued substantial revisions to its Guides which became effective on December 1, 2009. As a result, trade associations and their members need to review their use of endorsements and testimonials in advertising and adopt the changes made necessary by the final version of the Guides.
The general considerations behind the revised Guides are as follows:

• Endorsements must always reflect the honest opinions, findings, beliefs, or experience of the endorser and they may not contain any representations which would be deceptive, or could not be substantiated;
• The endorsement cannot be presented out of context or reworded to distort the endorser’s opinion or experience;
• If the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user at the time the endorsement was given;
• Advertisers are subject to liability for false and unsubstantiated statements made through endorsements or failing to disclose material connections between themselves and their endorsers; and
• Endorsers may also be subject to liability for their statements.

The revised Guides seek to curtail deceptive advertising practices by imposing stricter disclosure and substantiation requirements for consumer endorsements and testimonials. For example, (i) endorsements about the performance of a product or service will be interpreted as a representation that the product or service is effective for the purpose represented in the endorsement and (ii) advertisers must possess and rely upon adequate substantiation to support efficacy claims made through endorsements.

The main change, however, is to the “disclaimers of typicality” which are designed to alert consumers that the experience of the endorser is not representative of what consumers will generally achieve with the advertised product. If the advertiser does not have substantiation that the endorser’s experience is representative of what other consumers can expect, the ad should “clearly and conspicuously disclose the generally expected performance in the depicted circumstances.” Pro forma disclaimers such as “results not typical” will not cure otherwise deceptive messages and will no longer serve as a safe harbor. This change will have an immediate effect on a large number of advertisements, including those involving weight loss, exercise programs, and hair loss.

The revised Guides also include changes to expert endorsements and disclosure of material connections. Expert endorsers must possess the level of expertise that the ad implies the expert has, testing organizations must be independent, and requirements for disclosures of material connections would apply to blogs, discussion boards, and “street teams.”

Trade associations and their members should review their use of endorsements and testimonials in advertising immediately and adopt all changes made necessary by the final version of the Guides that has been adopted and which is now in effect.