Guides Concerning the Use of Endorsements and Testimonials in Advertising

[Billing Code: 6750-01-P]

FEDERAL TRADE COMMISSION

16 CFR Part 255

AGENCY: Federal Trade Commission.

ACTION: Proposed changes to Guides; request for comments.

SUMMARY: The Federal Trade Commission (“FTC” or “Commission”) is seeking

public comment on proposed revisions to its Guides Concerning the Use of Endorsements

and Testimonials in Advertising (“the Guides”).

DATES: Comments must be received on or before [INSERT DATE 60 DAYS AFTER

DATE OF PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: Interested parties may file a comment online or on paper by following

the instructions in the Invitation to Comment part of the SUPPLEMENTARY

INFORMATION section below. Write “Endorsement Guides, P204500” on your

comment, and file your comment online at https://www.regulations.gov. If you prefer to

file your comment on paper, mail your comment to the following address: Federal Trade

Commission, Office of the Secretary, 600 Pennsylvania Avenue, NW, Suite CC-5610

(Annex B), Washington, DC 20580, or deliver your comment to the following address:

Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street

SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 20024.

FOR FURTHER INFORMATION, CONTACT: Michael Ostheimer, (202) 326-2699,

[email protected], Attorney, Division of Advertising Practices, Bureau of Consumer

Protection, Federal Trade Commission, Room CC-10603, 600 Pennsylvania Avenue NW,

Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. OVERVIEW OF THE CURRENT GUIDES

II. HISTORY OF THE GUIDES

III. DISCUSSION OF COMMENTS RECEIVED IN RESPONSE TO

REGULATORY REVIEW NOTICE

IV. SECTION-BY-SECTION DESCRIPTION OF PROPOSED

AMENDMENTS

V. PROPOSED REVISED ENDORSEMENT AND TESTIMONIAL GUIDES

VI. INVITATION TO COMMENT

I. OVERVIEW OF THE CURRENT GUIDES

The Guides, 16 CFR Part 255, are designed to assist businesses and others in

conforming their endorsement and testimonial advertising practices to the requirements

of Section 5 of the FTC Act. Although the Guides interpret laws administered by the

Commission, and thus are advisory in nature, proceedings to enforce the requirements of

law as explained in the Guides can be brought under the FTC Act. In any such

proceeding, the Commission would have the burden of proving that a particular use of an

endorsement or testimonial was deceptive under the law.

The Guides define both endorsements and testimonials broadly to mean any

advertising message that consumers are likely to believe reflects the opinions, beliefs,

findings, or experience of a party other than the sponsoring advertiser. 16 CFR 255.0(b)

and (c). The Guides state that endorsements must reflect the honest opinions, findings,

beliefs, or experience of the endorser. 16 CFR 255.1(a). Furthermore, endorsements

may not contain any representations that would be deceptive, or could not be

substantiated, if made directly by the advertiser. Id. The Guides state that an

advertisement presenting consumer endorsements about the performance of an advertised

product will be interpreted as representing that the product is effective for the purpose

depicted in the advertisement. 16 CFR 255.2(a). They further advise that an

advertisement employing a consumer endorsement on a central or key attribute of a

product will be interpreted as representing that the endorser’s experience is representative

of what consumers will generally achieve. 16 CFR 255.2(b). If an advertiser does not

have adequate substantiation that the endorser’s experience is representative, the

advertisement should clearly and conspicuously disclose what the generally expected

performance would be in the depicted circumstances. Id.

The Guides define an expert endorser as someone who, as a result of experience,

study, or training, possesses knowledge of a particular subject that is superior to that

generally acquired by ordinary individuals. 16 CFR 255.0(e). An expert endorser’s

qualifications must in fact, give him or her the expertise that he or she is represented as

possessing with respect to the endorsement. 16 CFR 255.3(a). Moreover, an expert

endorsement must be supported by an actual exercise of that expertise and the expert’s

evaluation of the product must have been at least as extensive as someone with the same

degree of expertise would normally need to conduct in order to support the conclusions

presented. 16 CFR 255.3(b).

The Guides advise that when there is a connection between the endorser and the

seller of the advertised product that might materially affect the weight or credibility of the

endorsement (i.e., the connection is not reasonably expected by the audience), such

connection must be fully disclosed. 16 CFR 255.5.

Among other things, the Guides also state that: (1) when the advertisement

represents that the endorser uses the endorsed product, the endorser must have been a bona

fide user of it at the time the endorsement was given, 16 CFR 255.1(c); (2) advertisers are

subject to liability for false or unsubstantiated statements made through endorsements, or

for failing to disclose material connections between themselves and their endorsers; and

endorsers also may be liable for statements made in the course of their endorsements, 16

CFR 255.1(d); (3) advertisements presenting endorsements by what are represented to be

“actual consumers” should utilize actual consumers, or clearly and conspicuously disclose

that the persons are not actual consumers, 16 CFR 255.2(c); and (4) an organization’s

endorsement must be reached by a process sufficient to ensure that the endorsement fairly

reflects the collective judgment of the organization. 16 CFR 255.4.

II. HISTORY OF THE GUIDES

In December 1972, the Commission published for public comment proposed

Guides Concerning the Use of Endorsements and Testimonials in Advertising, 37 FR

25548 (Dec. 1, 1972). Interested parties submitted extensive comment. On May 21,

1975, the Commission promulgated, under the Federal Trade Commission Act (“FTC

Act”), 15 U.S.C. 41–58, three sections of the 1972 proposal as final guidelines (16 CFR

255.0, 255.3 and 255.4) and republished three others, in modified form, for additional

public comment. 40 FR 22127 (May 21, 1975). The Commission received public

comment on the three re-proposed guidelines, as well as on one of the final guidelines.

On January 18, 1980, the Commission promulgated three new sections as final guidelines

(16 CFR 255.1, 255.2 and 255.5) and modified an example to one of the final guidelines

adopted in May 1975 (16 CFR 255.0 Example 4). 45 FR 3870 (Jan. 18, 1980).

As part of its periodic regulatory review, the Commission sought public comment

on the Endorsement Guides in January 2007. 72 FR 2214 (Jan. 18, 2007). In November

2008, the Commission discussed the comments it received in 2007, proposed certain

revisions to the Guides, and requested comment on those proposed revisions. 73 FR

72374 (Nov. 28, 2008). In October 2009, the Commission substantively amended the

Guides, adding what are now 16 CFR 255.0(a), 255.1(d) and 255.2(a), significantly

modifying the guidance in 16 CFR 255.0(b), and modifying or adding numerous

examples. 74 FR 53124 (Oct. 15, 2009).

In February 2020, again as part of its ongoing regulatory review process, the

Commission published a Federal Register notice seeking comment on the overall costs,

benefits, and regulatory and economic impact of the Guides as well as a number of

specific questions focused on the material connections section of the Guides (16 CFR

255.5). 85 FR 10104 (Feb. 21, 2020). In light of the disruption caused by the

Coronavirus pandemic, the Commission extended the comment period for two months.

85 FR 19709 (Apr. 8, 2020).

III. OVERVIEW OF COMMENTS RECEIVED IN RESPONSE TO

REGULATORY REVIEW NOTICE

The Commission received 108 unique substantive comments in response to its

regulatory review notice.

Having considered those comments and its own extensive

Approximately seventy-five comments were submitted by individual consumers, most

of whom were apparently university students fulfilling class assignments. The remaining

consumer protection experience, the Commission now proposes various amendments to

the Guides and invites comments on these proposed changes.

Most commenters noted that the Guides are beneficial and should be retained,

and none disagreed. Some comments praised the current Guides for striking an

appropriate balance between protecting consumers and allowing advertisers to

communicate creatively and effectively to potential customers.

Most comments responded to specific questions the Commission posed in the

February 2020 Federal Register notice about certain provisions of the current Guides.

commenters were: American Influencer Council, Inc. (“AIC”); American Financial

Services Association (“AFSA”); Amazon.com, Inc. (“Amazon”); Association of National

Advertisers (“ANA”); BBB National Programs (“BBB”); Shirley Boyd, Esq. (“Boyd”);

Campaign for a Commercial Free-Childhood and Center for Digital Democracy

(“CCFC”); Competition and Markets Authority (“CMA”); Consumer Reports; Council

for Responsible Nutrition (“CRN”); Common Sense Media (“CSM”); Consumer World

(“CW”); Digital Content Next (“DCN”); Esports Bar Association (“Esports Bar”);

Entertainment Software Association (“ESA”); Prof. Chris Jay Hoofnagle (“Hoofnagle”);

Interactive Advertising Bureau (“IAB”); Jim Dudukovich, Esq. (“Dudukovich”); IZEA

Worldwide, Inc. (“IZEA”); Kleinfeld, Kaplan and Becker LLP (“KK&B”); LEGO Group

(“LEGO”); Maastricht University (“Maastricht”); Association of Magazine Media

(“MPA”); North American Insulation Manufacturers Association (“NAIMA”); Internet

and Television Association (“NCTA”); NetChoice; News Media Alliance (“NMA”);

National Retail Federation (“NRF”); Performance-Driven Marketing Institute (“PDMI”);

Pharmavite LLC (“Pharmavite”); Performance Marketing Association (“PMA”);

Princeton University Center for Information Technology Policy and University of

Chicago Department of Computer Science researchers (“Princeton”); SuperAwesome;

and Truth in Advertising, Inc. (“TINA”). The comments are available online at

https://beta.regulations.gov/document/FTC-2020-0017-0001/comment.

See, e.g., Amazon at 3; ANA at 1-3; BBB at 2; CRN at 1; DCN at 1; Dudukovich at 3;

Esports Bar at 2-3; ESA at 2; IAB at 1-2; IZEA at 1; LEGO at 1; MPA at 2; NAIMA at

1-2; NCTA at 1-2; NMA at 2; and Pharmavite at 1.

See, e.g., Amazon at 3; ESA at 2; IAB at 2-3; MPA at 2; NCTA at 1-2; and PDMI at 2.

Those comments are discussed in Part IV, below, in the context of the specific Guide

provisions to which they relate.

In addition, some comments addressed other issues. For example, some

commenters said that the Commission should engage in more vigorous enforcement

activities related to the Guides

and greater educational efforts.

Other commenters

weighed in on whether the Commission should

or should not

engage in a rulemaking

proceeding to convert some principles in the Guides into trade regulation rules.

Some comments urged the Commission to encourage social media platforms to

improve or standardize the built-in tools that some of them offer to facilitate disclosures

of material connections by platform users.

The Commission supports development of

effective, built-in disclosure tools but is concerned that some of the existing ones are too

poorly contrasting, fleeting, or small, or may be placed in locations where they do not

catch the user’s attention. For example, a social media disclosure tool that superimposes

a disclosure over a posted picture could be poorly contrasting, making the disclosure

inadequate, especially if the picture is only displayed for a few seconds and contains

competing text or other information. Similarly, a disclosure tool that superimposes a

small disclosure in the bottom left corner of a video for only a few seconds is

See, e.g., Boyd at 5-6, 16; Consumer Reports at 2; IZEA at 1; NRF at 14; and TINA at

22-23.

See, e.g., AIC at 4-5; Amazon at 3; Dudukovich at 6; and IAB at 3.

See, e.g., Boyd at 5-7; Natalie Jacobwith at 3.

See, e.g., MPA at 4, 7-8; and NRF at 14.

See, e.g., AFSA at 2; AIC at 2-3; ANA at 5-6; Dudukovich at 11-12; IAB at 4; NCTA

at 9; NRF at 9; PMA at 2; and Princeton at 5; see also CMA at 3.

inconspicuous. Even a tool that employs a disclosure of sufficient size, duration, and

contrast could be inadequate if it is displayed above, rather than below, a picture or video

that catches the attention of users scrolling through their feeds. Platforms may be

exposing endorsers to liability if users rely solely on a platform’s inadequate tools for

their disclosures. Platforms may also be exposing themselves to liability depending on

the representations they make about these tools. Given that platforms play a major role in

disseminating and monetizing endorsements, and actively encourage endorsers to

promote and amplify their posts, the Commission believes they should carefully evaluate

their tools and what they say about them to ensure they are not exposing themselves or

their users to liability.

IV. SECTION-BY-SECTION DISCUSSION OF PROPOSED REVISIONS TO

GUIDES, COMMENTS RECEIVED IN RESPONSE TO FEBRUARY 2020

FEDERAL REGISTER NOTICE, AND REQUESTS FOR ADDITIONAL

COMMENT

The Commission believes that the Guides should be retained but that a number of

revisions are appropriate. Many of the proposed changes are simply clarifications or

additional examples of the principles embodied in the existing Guides. Others enunciate

basic principles not expressly set forth in the current Guides but are established in

Commission enforcement actions. Several represent substantive changes from the

current Guides, based upon increased knowledge of how consumers view endorsements

and taking into consideration the comments submitted in response to the February 2020

Federal Register notice. Some of the new examples and updates to existing examples

reflect the extent to which advertisers have turned increasingly to the use of social media

and product reviews to market their products.

The Commission seeks comments on these proposed revisions, which are

discussed below by Section.

A. Section 255.0 – Purpose and Definitions

The Guides currently begin with a purpose and definitions section.

Current Section 255.0(b) defines an “endorsement” as any advertising message

that consumers are likely to believe reflects the opinions, beliefs, findings, or experience

of a party other than the sponsoring advertiser. As suggested in a comment, the

Commission proposes revising that definition to clarify that “marketing” and

“promotional” messages can be endorsements.

When a social media user tags a brand

in a post, it generally communicates that the poster uses or likes the brand, so, the revised

definition would also indicate that tags in social media posts can be endorsements.

Section 255.0(b) also currently states that an “endorser” may be an individual, group, or

institution. The Commission proposes a modification indicating that an endorser could

instead simply appear to be an individual, group, or institution. Thus, the Guides would

clearly apply to endorsements by fabricated endorsers.

The Commission proposes to add two footnotes to Section 255.0(b). The first

footnote would indicate the availability of detailed staff business guidance regarding

endorsements that is updated periodically, while noting that such staff guidance is not

approved by or binding upon the Commission. Numerous commenters asked the

Non-substantive changes to improve readability or to update examples to reflect

changes in marketing methods, technology, or society that have occurred since the

Guides were last updated or since they were first written (e.g., replacing “brochure” with

“web page”) are not discussed below.

See Boyd at 7.

Commission to update the Guides more frequently, such as every three years.

Some

commenters asked that the Commission provide detailed guidance in the Guides about

acceptable and unacceptable language and placement for disclosures of material

connections and their use on particular platforms,

while others asked the Commission to

continue to allow marketers flexibility in the crafting and placement of necessary

disclosures.

Commenters also differed on whether to incorporate FTC staff business

guidance into the Guides, with some saying it would be useful

and others taking the

position that the social media landscape is ever-changing and the Guides should focus on

general principles.

One commenter suggested cross-referencing staff guidance in the

Guides.

The Commission believes that its current approach for endorsement-related

guidance makes sense, with the Guides focused on general principles and examples, and

the more informal and easily updated staff guidance focused on specific questions and

issues that arise in this area. The new footnote would ensure that people reading the

Guides are aware of this additional staff guidance.

See, e.g., AIC at 1, 3; and Pharmavite at 2.

See, e.g., CRN at 2-4; Pharmavite at 1-2; PMA at 2; and Anna Keltner at 3.

See, e.g., ESA at 5-6; IAB at 2-3; and MPA at 6-7.

See, e.g., Consumer Reports at 9; CRN at 2; Dudukovich at 9; Pharmavite at 1-2; and

TINA at 12.

See, e.g., ANA at 3; BBB at 3; and NCTA at 2.

See TINA at 12.

The second footnote derives in part from a commenter’s suggestion that the

Guides address an incentivized endorser denigrating a competitor’s product.

The

footnote would acknowledge that paid or otherwise incentivized negative statements

about a competitor’s product – whether in the context of a consumer review or otherwise

– do not meet the definition of an “endorsement” but that engaging in such disparagement

can be a deceptive practice.

The second part of this footnote derives from a commenter’s suggestion that the

Guides state, as alleged in FTC v. Devumi, LLC,

that it is illegal to sell, purchase, or use

bots or other fake social media accounts to market goods and services.

Although an

endorser’s use of fake indicators of social media influence is not itself an endorsement

issue, given that such indicators do not express an advertising message by their mere

presence, the Commission would note in this footnote that it is a deceptive practice for

users of social media to purchase or create indicators of social media influence and then

use them to misrepresent their influence for a commercial purpose. The footnote would

also indicate that it is a deceptive practice to sell or distribute such indicators to such

users.

See NAIMA at 5; see also Consumer Reports at 4.

See Complaint at 5, FTC v. Devumi, LLC, No. 9:19-cv-81419-RKA (S.D. Fla. Oct. 18,

2019), https://www.ftc.gov/system/files/documents/cases/devumi_complaint.pdf.

See Consumer Reports at 9.

Current Section 255.0(d) defines a “product” as any product, service, company or

industry. At the suggestion of a commenter,

the Commission proposes modifying the

definition to clarify that a “product” includes a “brand.”

In response to comments requesting further guidance on what constitutes a clear

and conspicuous disclosure, the Commission proposes adding a new definition of “clear

and conspicuous” in a new Section 255.0(f). It would define a “clear and conspicuous”

disclosure as a disclosure that “is difficult to miss (i.e., easily noticeable) and easily

understandable by ordinary consumers.” It would give specific guidance with respect to

visual and audible disclosures, stress the importance of “unavoidability” when the

communication involves social media or the Internet, and say that the disclosure should

not be contradicted or mitigated by, or inconsistent with, anything in the communication.

While not mandating that a disclosure be both visual and audible under all circumstances,

it would say that when the triggering claim is visual the disclosure should be at least

visual; that when the triggering claim is audible, the disclosure should be at least audible;

that when the triggering claim is both visual and audible, the disclosure should be both;

and that a simultaneous audible and visual disclosure is more likely to be clear and

conspicuous. Finally, the proposed definition notes that when an endorsement targets a

specific audience, such as older adults, its effectiveness will be evaluated from the

perspective of members of that group.

Example 1 to Section 255.0 currently provides an example of an endorsement and

illustrates the principle that an endorsement may not be presented out of context or

See Boyd at 7.

reworded so as to distort the endorser’s opinion. One commenter noted that it was

unclear in the example who distorted the endorser’s opinion.

The Commission

proposes to modify the example to clearly identify the responsible party.

Current Example 5 to Section 255.0 involves a television advertisement in which

a professional golfer implicitly endorses a brand of golf balls by being shown practicing

her swing using the balls, even though she says nothing in the ad. The Commission

proposes expanding this example to illustrate that use of the same video footage in a

social media post can be an endorsement as long as the endorsed brand is tagged or

otherwise readily identifiable by viewers.

Example 6 to Section 255.0 currently illustrates how a paid actor hosting a

product infomercial and reading from a script can still be making an endorsement. The

Commission proposes adding a scenario to this example to show how the same actor can

talk about the product without making an endorsement and deleting Example 7, which

had also focused on illustrating statements that were not endorsements.

Example 8 to Section 255.0, which would be renumbered as Example 7, currently

provides scenarios in which an individual consumer’s social media posts would and

would not be considered endorsements. Two commenters asked for further explanation

of the Commission’s reasoning.

The Commission proposes to clarify the example.

When a consumer buys the product with her own money under ordinary circumstances

and chooses to post about it, the post is not an endorsement under the Guides because the

See Dudukovich at 17.

See ANA at 8-9; and Dudukovich at 17-18.

consumer has no connection to the manufacturer beyond being an ordinary purchaser and

her message cannot be attributed to the product’s manufacturer. The revised example

would note that the same would be true for a consumer review. Furthermore, if the

consumer received a coupon for a free trial product from the manufacturer simply based

upon her purchase history and if the manufacturer did not ask coupon recipients for

reviews, then the consumer’s unsolicited review would not be an endorsement because it

cannot be attributed to the manufacturer. However, if the consumer received the free

product as part of a marketing program that periodically provides free products from

various manufacturers, where the consumer has the option of writing a review, the

consumer’s review would be an endorsement because of her connection to the

manufacturer through the marketing program.

The Commission proposes adding four new examples to this section. New

Example 8 would illustrate an endorsement made through video game play streamed on

social media without an express product recommendation. New Example 9 illustrates

disclosures that are easily missed and thus are not clear and conspicuous. New Examples

10 and 11 illustrate how a disclosure may need to be evaluated from the perspective of an

advertisement’s target audience and that disclosures need to be clear and conspicuous on

multiple common types of platforms or devices.

B. Section 255.1 – General Considerations

Section 255.1 sets forth principles that apply to endorsements generally (e.g.,

endorsements must reflect the honest opinions or experience of the endorser, and they

may not convey any representation that would be deceptive if made directly by the

advertiser).

Section 255.1(d) currently recognizes that advertisers are subject to liability for

false or unsubstantiated statements made through endorsements, or for failing to disclose

material connections between themselves and their endorsers. The Commission would

indicate that an advertiser may be liable for an endorser’s deceptive statement even when

the endorser is not liable. The Commission also proposes adding guidance to this

subsection on what actions advertisers should take with respect to their endorsers. Such

guidance previously only appeared in an example.

Current Section 255.1(d) also recognizes that endorsers themselves may be

subject to liability for their statements. Commenters asked for clarification of when

endorsers would be liable.

The Commission proposes moving the discussion of

endorser liability to a new Section 255.1(e) and indicating that endorsers may be liable

for their statements such as when they make representations that they know or should

know to be deceptive. The level of due diligence required by the endorsers will depend

on their level of expertise and knowledge, among other factors. Current Examples 3 and

4 involve endorsers who knew or should have known that their statements were

deceptive. Section 255.1(e) would also say that a non-expert endorser may also be liable

when the endorser makes misleading or unsubstantiated representations about

performance or efficacy that are inconsistent with the endorser’s personal experience or

that were not made or approved by the advertiser and that go beyond the scope of the

endorser’s personal experience.

Current Example 5 involves such an endorser and the

See, e.g., Boyd at 13; and Dudukovich at 18.

The Commission would add a cross-reference to Section 255.3 with respect to the

responsibilities of an expert endorser.

Commission proposes updating it to better illustrate this principle. Finally, Section

255.1(e) would also note that endorsers may also be liable for failing to disclose

unexpected material connections between themselves and an advertiser, such as when

they create and disseminate endorsements without such disclosures.

A few commenters suggested that the Guides deal with the disclosure

responsibility of intermediaries such as marketing and public relations firms.

The

Commission proposes adding a new Section 255.1(f) explaining the potential liability of

intermediaries. Intermediaries, such as advertising agencies and public relations firms,

may be liable for their roles in disseminating what they knew or should have known were

deceptive endorsements.

For example, advertising agencies that intentionally engage in

deception or that ignore obvious shortcomings of claims they disseminate may be liable.

They may also be liable for their roles with respect to endorsements that fail to disclose

unexpected material connections, whether by disseminating advertisements without

necessary disclosures of material connection or by hiring and directing the endorsers who

fail to make necessary disclosures.

See, e.g., Boyd at 13; and Maastricht at 7-8.

See Complaint at 6, 8, 12-12, 20, FTC v. Marketing Architects, Inc., No. 2:18-cv-

00050 (D. Me. Feb. 6, 2018),

https://www.ftc.gov/system/files/documents/cases/1623101marketingarchitectscomplaint.

pdf (defendant advertising agency created and disseminated fictitious weight-loss

testimonials).

See Complaint at 2-5, In the Matter of Machinima, Inc., No. C-4569 (Sept. 2, 2015),

https://www.ftc.gov/system/files/documents/cases/160317machinimacmpt.pdf

(respondent recruited, hired, and instructed influencers on behalf of an advertiser, but did

not require the influencers to disclose compensation).

The Commission proposes adding a new Section 255.1(g) stating a general

principle that the use of an endorsement with the image or likeness of a person other than

the actual endorser is deceptive if it misrepresents a material attribute of the endorser.

The Commission proposes modifying current Example 1 to Section 255.1 to note

that an endorser does not need to go back and modify or delete past social media posts as

long as the posts were not misleading when they were made and the dates of the posts are

clear and conspicuous to viewers. However, the example would state that if the post was

later reposted by the endorser or shared by the publisher, it would suggest to reasonable

consumers that the endorser continued to hold the views expressed in the prior post.

The Commission proposes deleting current Example 2 to Section 255.1 because it

is patently obvious that a person asked to try unmarked products and pick the best one is

not communicating that she or he is a regular user of the selected product. The

Commission proposes to replace that example with one that illustrates when an

endorsement would likely communicate regular use and ownership.

The Commission proposes editing current Example 3 to Section 255.1 to indicate

that a paid endorser and the company paying the endorser are both potentially liable for

the endorser’s social media post that fails to disclose the endorser’s relationship to the

company. The Commission proposes altering the example and adding a new cross-

reference in this example to the Guides’ material connection provisions (Section 255.5)

to make clear that those provisions apply to paid consultants and not just employees or

those hired to be endorsers. The Commission also proposes adding alternative language

to the example illustrating how the advertiser could be liable when the endorser is not

liable.

The Commission proposes adding new Examples 6 and 7 to illustrate the principle

in new Section 255.1(g) involving the use of an image or likeness of a person other than

the actual endorser to misrepresent a material attribute of the endorser. These examples

involve endorsements for an acne product using an image of a person with much better

skin than the actual endorser, a weight-loss product with an image of a person weighing

much less than the actual endorser, and a learn-to-read program with a picture of a

significantly younger child than the child of the endorser.

C. Section 255.2 – Consumer Endorsements

Section 255.2 of the Guides provides guidance specific to the use of consumer

endorsements, commonly referred to as testimonials.

Current Section 255.2(a) addresses the need for adequate substantiation for claims

made through endorsements. The Commission proposes clarifying that this need for

substantiation applies to both express and implied claims.

Current Section 255.2(b) states that when the advertiser does not have

substantiation that an endorser’s experience is representative of what consumers will

generally achieve, an ad should clearly and conspicuously disclose the generally expected

performance in the depicted circumstances. The Commission proposes adding a

clarifying statement that the disclosure of the generally expected performance should be

presented in a manner that does not itself misrepresent what consumers can expect.

The Commission proposes adding a new Section 255.2(d) that addresses

consumer reviews and articulates a fundamental principle not expressly set forth in the

existing Guides. It would state that in procuring, suppressing, boosting, organizing, or

editing consumer reviews of their products, advertisers should not take actions that have

the effect of distorting or otherwise misrepresenting what consumers think of their

products. It would also note that this is true regardless of whether the reviews are

considered “endorsements” under the Guides.

The Commission would also add a footnote to new Section 255.2(d) stating that

sellers are not required to display customer reviews that contain unlawful, harassing,

abusive, obscene, vulgar, or sexually explicit content, or content that is inappropriate with

respect to race, gender, sexuality, or ethnicity, or reviews that the seller reasonably

believes are fake, so long as the criteria for withholding reviews are applied uniformly to

all reviews submitted. The footnote would also state that sellers are not required to

display reviews that are unrelated to their products or services and that “services” include

customer service, delivery, returns, and exchanges. The Commission is particularly

interested in consumer expectations regarding product reviews that are solely about

related services. Do consumers expect that sellers publish such reviews that are just

about a product’s shipping or refund practices or the associated customer service together

with other product reviews?

The Commission proposes to expand current Example 2 of Section 255.2 so as to

illustrate how a disclosure of expected results can be misleading when those results are

only true under limited circumstances not clearly stated in the ad.

Because current Example 3 of Section 255.2 involves serum cholesterol lowering

claims, the Commission proposes replacing “adequate substantiation” with “competent

and reliable scientific evidence,” the type of substantiation that would be required for

such claims.

Current Example 4 of Section 255.2 provides two examples of acceptable weight-

loss disclosures of generally expected results under different circumstances, one where a

testimonialist reports her weight loss over a certain period and one where the

testimonialist reports her weight loss without specifying a time period. The Commission

proposes editing those disclosures to make them more informative for consumers.

The

Commission would also add examples of two alternative disclosures that would be

inadequate, one involving a disclosure of weight loss per week and the other involving a

broad range of possible weight loss.

Another proposed addition to Example 4 discusses and illustrates how outliers can

substantially affect the average results such that a disclosure of generally expected results

based upon a mean computation would be misleading and how, when such is the case, the

disclosure could instead be based upon median results.

The Commission would also add language to Example 4 illustrating a marketer’s

liability for procuring fake reviews that appear for its product on a third-party review

website. The marketer is not only liable for procuring reviews that are not from bona fide

users, but is also liable for any unsubstantiated claims made in those fake reviews.

Example 4 provides an example of a performance claim requiring substantiation – a

claim that WeightAway is an effective weight loss product. The Commission proposes

revising that exemplar to include the claim that the endorser’s weight loss was not just

due to her dietary restrictions and exercise regimen.

See Complaint at 5-9, FTC v. Cure Encapsulations, Inc., No. 1:19-cv-00982

(E.D.N.Y. Feb. 26, 2019),

https://www.ftc.gov/system/files/documents/cases/quality_encapsulations_complaint_2-

26-19.pdf.

Finally, the Commission proposes adding an alternative scenario to Example 4

involving an advertisement for a weight-loss program. The addition would explain that a

disclosure of typical weight loss limited to only successful participants in the program

(e.g., only those who stuck with it for six months), ignoring participants who quit, would

be inadequate.

The Commission proposes four new examples to illustrate the proposed new

Section 255.2(d).

New Example 8 addresses an online seller suppressing or not publishing product

reviews based upon their star ratings or their negative sentiments.

The review portions

of the seller’s product pages are misleading as to purchasers’ actual opinions of the

products. The example would also provide examples of reviews that need not be

published. Finally, the example illustrates that it would be deceptive for a seller to

highlight glowing reviews and label them as “most helpful” if consumers had not actually

voted them most helpful.

New Example 9 addresses paying purchasers to write positive product reviews.

Such reviews are deceptive regardless of any disclosure of the payment, because the

manufacturer has required that the reviews be positive. The proposed example has a

cross-reference for when there is no requirement that the reviews be positive and the

See Complaint at 1-2, In the Matter of Fashion Nova, LLC, No. C-4759 (Mar. 18,

2022),

http://www.ftc.gov/system/files/ftc_gov/pdf/1923138C4759FashionNovaComplaint.pdf.

See Complaint at 8, In the Matter of UrthBox, Inc., No. C-4676 (April 3, 2019),

https://www.ftc.gov/system/files/documents/cases/172_3028_urthbox_complaint_4-3-

19_0.pdf.

reviewers understand that they are free to write negative reviews without suffering any

consequences.

New Example 10 addresses the unfair practice of threatening consumers who post

negative reviews to third-party websites in order to coerce the consumers to delete their

reviews. Such threats can take the form of legal,

physical, or other threats. As noted in

a new proposed footnote to the Guides, when the threats are incorporated into a form

contract, they violate the Consumer Review Fairness Act. 15 U.S.C. 45b(b)(1).

Several commenters suggested addressing review gating, i.e., practices that

involve obtaining customer feedback and then sending satisfied and dissatisfied

customers down different paths in order to encourage positive reviews and avoid negative

reviews.

New Example 11 discusses a marketer soliciting feedback from all customers

and only inviting those who give positive feedback to write online reviews. It says that

such disparate treatment may be an unfair or deceptive practice if it results in the posted

reviews being substantially more positive than if the marketer had not engaged in the

practice.

D. Section 255.3 – Expert Endorsements

Section 255.3 provides guidance with respect to expert endorsements.

Current Section 255.3(a) addresses advertisements that represent “directly or by

implication” that an endorser is an expert with respect to the endorsement message. The

Commission proposes clarifying that this section applies to representations made

See FTC v. Roca Labs, Inc., 345 F. Supp. 3d 1375, 1394-95 (M.D. Fla. 2018).

See, e.g., BBB at 5; Boyd at 23; Dudukovich at 13; and TINA at 22; but see ANA at

14.

“expressly or by implication.”

The Commission proposes modifying current Example

2 to clarify that the non-medical “doctor” expert endorser should have relevant expertise

and that the non-medical and non-specialized doctors referenced in the example do not

necessarily have enough expertise to endorse the product even with a clear and

conspicuous disclosure. The Commission also proposes amending current Example 6 –

adding a sentence about the potential liability of the expert endorser and the advertiser,

including a cross-reference to Section 255.1. The Commission would clarify that what

matters is the expert’s “purported” degree of expertise, not the expert’s actual degree of

expertise. Finally, the Commission would also indicate in Example 6 that scientific

evidence is expected to support a serum cholesterol lowering claim.

E. Section 255.4 – Endorsements by Organizations

Section 255.4 provides guidance specific to the use of endorsements by

organizations.

The Commission proposes to renumber the current example in Section 255.4 as

Example 1 and to add two additional examples.

New Example 2 would say that if a manufacturer sets up an apparently

independent review website that reviews the manufacturer’s own products and competing

products, that website is deceptive because it is not in fact independent.

The Commission proposes making a similar change to Section 255.2(c).

See Complaint at 8-9, In the Matter of Son Le, No. C-4619 (May 31, 2020),

https://www.ftc.gov/system/files/documents/cases/162_3178_c4619_trampolinesafetyofa

merica complaint 0.pdf.

New Example 3 addresses a third-party review site that provides rankings of

various manufacturers’ products and accepts payments in exchange for higher rankings.

This practice was challenged in the Commission’s case against LendEDU.

One

commenter asked whether, based on that case, a disclosure is only required on such

websites when they make claims that they are “objective,” “accurate,” and “unbiased.”

The revised example would say that a paid ranking boost is deceptive regardless of

whether the website makes an express claim of independence or objectivity. It also

would note the potential lability of a manufacturer that pays for a higher ranking.

Finally, it would say that if a manufacturer makes payments to the review site but not for

higher rankings, there should be a clear and conspicuous disclosure regarding the

payments, with a cross-reference to an example involving payments for affiliate links.

F. Section 255.5 – Disclosure of Material Connections

Section 255.5 of the current Guides states that advertisers must disclose

connections between themselves and their endorsers that might materially affect the

weight or credibility of the endorsement (i.e., the connection is not reasonably expected

by the audience). The text of this section also includes the example of a television ad

featuring an endorser who is neither represented in the advertisement as an expert nor is

known to a significant portion of the viewing public.

The Commission believes that the requirement that material connections between

advertisers and endorsers be disclosed is appropriate and should be retained. The

See Complaint at 15, In the Matter of Shop Tutors, Inc., No. C-4719 (Feb. 3, 2020),

https://www.ftc.gov/system/files/documents/cases/182_3180_lendedu_complaint.pdf.

See AFSA at 2.

Commission proposes specifying that such disclosures must be “clear and conspicuous,”

adding a definition of that phrase (as discussed above), and deleting the more ambiguous

statement that such disclosures must be “fully” disclosed. It also proposes to delete the

existing example from the text of the section and to replace it with more general

guidance. A commenter asked for further guidance about what types of relationships

could constitute material connections.

The proposed revised text of Section 255.5

would explain that material connections can include a business, family, or personal

relationship; monetary payment; the provision of free or discounted products or services

to the endorser, including products or services unrelated to the endorsed product; early

access to a product; or the possibility of winning a prize, of being paid, or of appearing

on television or in other media promotions. The new guidance would state that a material

connection can exist regardless of whether the advertiser requires an endorsement for the

payment or free or discounted products.

Several commenters asked that the Commission provide examples of immaterial

connections that need no disclosure.

The Commission proposes instead to recognize in

the text of Section 255.5 that some connections may be immaterial because they are too

insignificant to affect the weight or credibility given to endorsements.

One commenter suggested that the Guides recognize that, for influencers

primarily famous because of their social media presence, their sponsorships are often

expected.

Without accepting or rejecting that proposition, the Commission proposes

See Boyd at 9.

See, e.g., ANA at 10-12; CMA at 2; and NCTA at 10.

See NRF at 4.

stating that an endorser’s material connection need not to be disclosed when it is

understood or expected by all but an insignificant portion of the audience.

One commenter requested that the Guides state that the exact nature or amount of

an endorser’s compensation need not be disclosed,

while another commenter asked that

the Guides require influencers to state the amount of their compensation because it will

help star-struck consumers appreciate the lack of honesty in celebrity posts.

The

Commission proposes clarifying that the disclosure of a material connection does not

require the complete details of the connection, but it must clearly communicate the nature

of the connection sufficiently for consumers to evaluate its significance.

Commenters also expressed widely diverging opinions on the extent to which the

Guides should address disclosures of material connections to children. Most of these

commenters agreed that, as children grow, they are better able to understand what

advertisements are and to distinguish them from other content. They also agreed that it is

easier for children to recognize traditional television advertising than influencer

marketing, with its blurring of organic content and marketing. Commenters diverged as

to the ages at which and the extent to which disclosures can be effective. Some variously

argued that disclosures of material connections are never effective for children, are

ineffective at certain young ages, or should be more robust for children at certain ages.

At least one commenter argued that disclosures can work for younger kids.

Several

Id. at 10.

See Hoofnagle at 3.

See CCFC at 3, 25; CSM at 1, 10; and TINA at 10-11.

See SuperAwesome at 2; see also NetChoice at 11.

commenters urged the Commission not to address this issue in the Guides at all and rely

instead on self-regulatory organizations.

One commenter also noted that improving

disclosures can help parents identify advertising to children.

Some commenters

discussed or cited research studies in this area to support their views

or referred to the

value of additional research.

The Commission recognizes that it is difficult for children – especially younger

children – to discern ads from entertainment or other content in the digital environment,

where the lines are blurred much more than in traditional “linear” media, like television.

For example, it may not be apparent to them when influencers are being paid to promote

a product featured in their video and social media posts. Although not addressed in the

comments, parents may play a role in promoting children’s understanding of advertising

and lessening the effects of potentially deceptive practices. The Commission would

benefit from more evidence than provided in the comments to develop specific guidance

or best practices in this area. FTC staff thus plans to hold a public event to gather

research and expert opinion on: (a) children’s capacities at different ages and

developmental stages to recognize and understand advertising content and distinguish it

from other content; (b) the need for and efficacy of disclosures as a solution to the

problem facing children of different ages; and, (c) if disclosures can be efficacious, the

See ANA at 9-10; DCN at 2; IAB at 5; and NCTA at 2-3.

See CCFC at 23.

See, e.g., CCFC at 16-17, 21-23; CSM at 3-4, 6, 9; SuperAwesome at 3-5; and TINA

at 10-11.

See, e.g., BBB at 4; and CSM at 10.

most effective format, placement, and wording for disclosures. As discussed below, the

Commission also proposes adding a new Section 255.6 addressing endorsements directed

to children.

The current Example 3 to Section 255.5 makes clear that consumers would not

expect that a celebrity was paid for endorsing a medical procedure during a routine

interview on a television talk show, that knowledge of such a financial interest would

likely affect the weight or credibility consumers give to that endorsement, and that the

celebrity’s financial connection to the advertiser should be disclosed. One commenter

said that the Guides should indicate that disclosures at the end of a talk show are not clear

and conspicuous.

The Commission proposes edits to Example 3 noting that the

disclosure should be during the interview and that a disclosure during the show’s closing

credits is not clear and conspicuous. A different commenter suggested that the Guides

say that disclosure obligations exist even if an endorser is not paid for a particular post.

Revised Example 3 would say that, if the celebrity makes the endorsement in one of her

social media posts, her connection to the advertiser should be disclosed regardless of

whether she was paid for the particular post. The revised example would also illustrate

that receipt of free or discounted services can constitute a material connection.

One comment suggested that the Guides address the reuse of an influencer’s

social media endorsement.

Revised Example 3 would also state that, when reusing a

celebrity’s social media posts in its own social media, an advertiser should clearly and

See CW at 2-5.

See Dudukovich at 30, 62.

See IZEA at 1.

conspicuously disclose its relationship to the celebrity (assuming the initial post

necessitated a disclosure).

The current Example 4 to Section 255.5 addresses the consumer expectation that

an expert endorser would be reasonably compensated for appearing in an ad. The

Commission proposes clarifying that the existing guidance applies to traditional ads, such

as television ads, and adding an alternative scenario involving a post on the expert’s own

social media account, a context in which consumers would be less likely to expect that

the expert was compensated and more likely to expect that the expert is expressing an

independent opinion.

The current Example 5 to Section 255.5 addresses a scenario in which restaurant

patrons are informed before they enter that they will be interviewed by an advertiser as

part of its TV promotion of its new food product. A commenter suggested that we clarify

why this information is material.

The Commission proposes explaining that a patron

might want to give the product a good review in the hope of appearing on television.

Several commenters said that incentivized reviews need disclosures even if the

incentives are not conditioned on the reviews being positive.

Current Example 6 to

Section 255.5 addresses the situation where “extras” who want to work in commercials

are recruited to use a product and endorse it in an infomercial in exchange for

compensation and exposure. The Commission proposes expanding the example to

address ordinary consumers recruited to try a product for free and write online reviews of

See Dudukovich at 24-25.

See, e.g., AFSA at 3-4; BBB at 4-5; Boyd at 21-22; Dudukovich at 12-13; NAIMA at

4-5; and TINA at 21; but see CRN at 4-5.

it in exchange for payment; the example would state the need to disclose this connection

in the resulting reviews. The example has a cross-reference to Section 255.2(d) and

Example 9 of Section 255.2 for situations in which an incentive is conditioned on a

review being positive or recruited consumers have reason to believe there are or may be

negative consequences from posting reviews which are not positive. Multiple comments

also raised concerns regarding incentivized reviews being included in an average star

rating.

The proposed example states that, even if adequate disclosures appear in each

incentivized review, the practice could still be deceptive if those solicited reviews’ star

ratings are included in an average star rating for the product, and their inclusion

materially increases that average star rating.

The Commission proposes to modify Example 7 to Section 255.5 to say that if a

significant proportion of viewers are likely unaware that a woodworking influencer

received a valuable piece of equipment for free from its manufacturer, he should clearly

and conspicuously disclose that he got it for free. The Commission would make this

example conditional in recognition of the possibility that the followers of some

influencers or types of influencers may expect that they receive free products from

advertisers. The Commission would also add a cross-reference to Section 255.1(d) about

the liability and responsibilities of advertisers.

The current Example 8 to Section 255.5 addresses an employee’s endorsement of

an employer’s product in an online community and the resulting need for a disclosure. A

comment asked that the Commission add a statement about the employer educating its

See, e.g., AFSA at 4; BBB at 5; NAIMA at 5; and TINA at 21-22.

employees about disclosure requirements. The Commission proposes adding an

explanation of an employer’s obligations and noting that this guidance also applies to

online consumer reviews.

The Commission is also proposing the addition of three new examples to Section

255.5.

The first one arises from the request of commenters that the Commission include

an example illustrating conditions under which third-party certifications and seals of

approval, which typically require payment to the certifying organization to fund the

evaluation, do not require a disclosure.

New Example 10, which is a slightly edited

version of an example in the Green Guides,

recognizes that consumers would

reasonably expect that marketers have to pay non-profit, third-party organizations

reasonable fees for some certifications and seals.

Second, multiple commenters asked that the Guides address the need to disclose

affiliate relationships and the adequacy of affiliate links

while one commenter asserted

that consumers understand such links and that no disclosure is necessary.

New

Example 11 addresses the disclosure of affiliate links. It says that a blogger who writes

independent content reviewing products and who monetizes that content with affiliate

links should clearly and conspicuously disclose the compensation.

See CRN at 4; and KK&B at 1-2; see also NAIMA at 4.

See Guides for the Use of Environmental Marketing Claims, 16 CFR 290.6, Example 8.

See, e.g., AFSA at 4; BBB at 5, 11-12; Boyd at 24-25; CRN at 3, Consumer Reports at

10; Dudukovich at 14, 52; Maastricht at 7; and NMA at 3.

See NRF at 10.

Third, new Example 12 recognizes that, just as with television commercials,

consumers can reasonably expect that people appearing in certain newer-form

advertisements are compensated for their statements.

G. New Section 255.6 – Endorsements Directed to Children

As discussed above, endorsements directed to children may be of special concern.

The Commission proposes adding a section simply acknowledging that fact, as to which

we are aware of no disagreement. It would state, “Endorsements in advertisements

addressed to children may be of special concern because of the character of the audience.

Practices which would not ordinarily be questioned in advertisements addressed to adults

might be questioned in such cases.” The Commission proposed a very similar section in

1972 as Section 255.6,

but withdrew it in 1975, stating that it had “determined that the

area of children’s advertising could not be completely covered in these Guides.”

The

Commission now believes that even as more evidence is gathered about the effects of

children’s advertising, there is ample basis to recognize that children may react

differently than adults to endorsements in advertising or to related disclosures.

Request for Comment

You can file a comment online or on paper. For the Commission to consider your

comment, we must receive it on or before [INSERT DATE 60 DAYS AFTER DATE OF

PUBLICATION IN THE FEDERAL REGISTER]. Write “Endorsement Guides,

P204500” on your comment. Your comment – including your name and your state – will

See 37 FR 25,548 (Dec. 1, 1972).

See 40 FR 22,127 (May 1, 1975).

be placed on the public record of this proceeding, including, to the extent practicable, on

the https://www.regulations.gov website.

Because of the agency’s heightened security screening, postal mail addressed to

the Commission will be subject to delay. We strongly encourage you to submit your

comments online through the https://www.regulations.gov website. To ensure the

Commission considers your online comment, please follow the instructions on the web-

based form.

If you file your comment on paper, write “Endorsement Guides, P204500” on

your comment and on the envelope, and mail your comment to the following address:

Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite

CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the following

address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400

7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 20024. If possible,

please submit your paper comment to the Commission by courier or overnight service.

Because your comment will be placed on the public record, you are solely

responsible for making sure that your comment does not include any sensitive or

confidential information. In particular, your comment should not contain sensitive

personal information, such as your or anyone else’s Social Security number; date of birth;

driver’s license number or other state identification number or foreign country

equivalent; passport number; financial account number; or credit or debit card number.

You are also solely responsible for making sure your comment does not include any

sensitive health information, such as medical records or other individually identifiable

health information. In addition, your comment should not include any “[t]rade secret or

any commercial or financial information which . . . is privileged or confidential” – as

provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16

CFR 4.10(a)(2) – including in particular competitively sensitive information such as

costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes,

or customer names.

Comments containing material for which confidential treatment is requested must

be filed in paper form, must be clearly labeled “Confidential,” and must comply with

FTC Rule 4.9(c). In particular, the written request for confidential treatment that

accompanies the comment must include the factual and legal basis for the request, and

must identify the specific portions of the comment to be withheld from the public record.

See FTC Rule 4.9(c). Your comment will be kept confidential only if the General

Counsel grants your request in accordance with the law and the public interest. Once

your comment has been posted publicly at www.regulations.gov – as legally required by

FTC Rule 4.9(b) – we cannot redact or remove your comment, unless you submit a

confidentiality request that meets the requirements for such treatment under FTC Rule

4.9(c), and the General Counsel grants that request.

Visit the FTC website to read this document and the news release describing it.

The FTC Act and other laws that the Commission administers permit the collection of

public comments to consider and use in this proceeding as appropriate. The Commission

will consider all timely and responsive public comments it receives on or before

[INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL

uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-

policy.

List of Subjects in 16 CFR Part 255

Advertising, Trade Practices

Accordingly, the Federal Trade Commission proposes to amend Title 16,

Chapter I, Subchapter B, of the Code of Federal Regulations as follows:

PART 255 – GUIDES CONCERNING USE OF ENDORSEMENTS AND

TESTIMONIALS IN ADVERTISING

Sec.

255.0 Purpose and Definitions.

255.1 General Considerations.

255.2 Consumer Endorsements.

255.3 Expert Endorsements.

255.4 Endorsements by Organizations.

255.5 Disclosure of Material Connections.

255.6 Endorsements Directed to Children.

1. The authority for part 255 continues to read:

Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58

2. Revise part 255 to read as follows:

§ 255.0 Purpose and definitions.

(a) The Guides in this part represent administrative interpretations of laws enforced

by the Federal Trade Commission for the guidance of the public in conducting its affairs

in conformity with legal requirements. Specifically, the Guides address the application of

Section 5 of the FTC Act (15 U.S.C. 45) to the use of endorsements and testimonials in

advertising. The Guides provide the basis for voluntary compliance with the law by

advertisers and endorsers. Practices inconsistent with these Guides may result in

corrective action by the Commission under Section 5 if, after investigation, the

Commission has reason to believe that the practices fall within the scope of conduct

declared unlawful by the statute.

The Guides set forth the general principles that the Commission will use in

evaluating endorsements and testimonials, together with examples illustrating the

application of those principles. The Guides do not purport to cover every possible use of

endorsements in advertising.

Whether a particular endorsement or testimonial is

deceptive will depend on the specific factual circumstances of the advertisement at issue.

(b) For purposes of this part, an “endorsement” means any advertising, marketing, or

promotional message (including verbal statements, tags in social media posts,

demonstrations, or depictions of the name, signature, likeness or other identifying

personal characteristics of an individual or the name or seal of an organization) that

consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a

party other than the sponsoring advertiser, even if the views expressed by that party are

identical to those of the sponsoring advertiser.

The party whose opinions, beliefs,

Staff business guidance applying Section 5 of the FTC Act to endorsements and

testimonials in advertising is available on the FTC website. Such staff guidance

addresses details not covered in these Guides and is updated periodically, but is not

approved by or binding upon the Commission.

A paid or otherwise incentivized negative statement about a competitor’s product is not

an endorsement, as that term is used in the Guides. Nevertheless, such statements, e.g., a

paid negative review of a competing product, can be deceptive in violation of Section 5.

findings, or experience the message appears to reflect will be called the “endorser” and

could be or appear to be an individual, group, or institution.

context of its enforcement of the Federal Trade Commission Act and for purposes of this

part. The term endorsements is therefore generally used hereinafter to cover both terms

and situations.

(d) For purposes of this part, the term “product” includes any product, service, brand,

company, or industry.

(e) For purposes of this part, an “expert” is an individual, group, or institution

possessing, as a result of experience, study, or training, knowledge of a particular subject,

which knowledge is superior to what ordinary individuals generally acquire.

(f) For purposes of this part, “clear and conspicuous” means that a disclosure is

difficult to miss (i.e., easily noticeable) and easily understandable by ordinary

consumers. If a communication’s representation necessitating a disclosure is made

through visual means, the disclosure should be made in at least the communication’s

visual portion; if the representation is made through audible means, the disclosure should

be made in at least the communication’s audible portion; and if the representation is made

through both visual and audible means, the disclosure should be made in the

The use by endorsers of fake indicators of social media influence, such as fake social

media followers, is not itself an endorsement issue. The Commission notes, however,

that it is a deceptive practice for users of social media platforms to purchase or create

indicators of social media influence and then use them to misrepresent such influence to

potential clients, purchasers, investors, partners, or employees or to anyone else for a

commercial purpose. It is also a deceptive practice to sell or distribute such indicators to

such users.

communication’s visual and audible portions. A disclosure presented simultaneously in

both the visual and audible portions of a communication is more likely to be clear and

conspicuous. A visual disclosure, by its size, contrast, location, the length of time it

appears, and other characteristics, should stand out from any accompanying text or other

visual elements so that it is easily noticed, read, and understood. An audible disclosure

should be delivered in a volume, speed, and cadence sufficient for ordinary consumers to

easily hear and understand it. In any communication using an interactive electronic

medium, such as social media or the Internet, the disclosure should be unavoidable. The

disclosure should not be contradicted or mitigated by, or inconsistent with, anything else

in the communication. When an endorsement targets a specific audience, such as older

adults, “ordinary consumers” includes members of that group.

Example 1: A film critic’s review of a movie is excerpted in an advertisement

placed by the film’s producer. When so used, the excerpt is an endorsement

because readers would view it as a statement of the critic’s own opinions and not

those of the producer. If the excerpt alters or quotes from the text of the review in

a way that does not fairly reflect its substance, the advertisement would be

deceptive because it distorts the endorser’s opinion. [See § 255.1(b).]

Example 2: A television commercial depicts two unidentified shoppers in a

supermarket buying a laundry detergent. One comments to the other how clean

the advertised brand makes the shopper’s clothes. The other shopper then replies,

“I will try it because I have not been fully satisfied with my own brand.” This

obviously fictional dramatization would not be an endorsement.

Example 3: In an advertisement for a pain remedy, an announcer unfamiliar to

consumers except as a spokesperson for the advertising drug company praises the

drug’s ability to deliver fast and lasting pain relief. The spokesperson purports to

speak, not on the basis of their own opinions, but rather in the place of and on

behalf of the drug company. The announcer’s statements would not be

considered an endorsement.

Example 4: A manufacturer of automobile tires hires a well-known professional

automobile racing driver to deliver its advertising message in television

commercials. In these commercials, the driver speaks of the smooth ride,

strength, and long life of the tires. Many consumers are likely to believe this

message reflects the driver’s personal views, even if the driver does not say so,

because consumers recognize the speaker as primarily a racing driver and not

merely as a spokesman. Accordingly, consumers may well believe the driver

would not speak for an automotive product without actually believing in their

statements and having personal knowledge sufficient to form the beliefs

expressed. The attribution of these beliefs to the driver makes this message an

endorsement under the Guides.

Example 5: A television advertisement for a brand of golf balls includes a video

of a prominent and well-recognized professional golfer practicing numerous

drives off the tee. The video would be an endorsement even though the golfer

makes no verbal statement in the advertisement.

The golfer is also hired to post the video to their social media account. The post

is an endorsement if viewers can readily identify the golf ball brand, either

because it is apparent from the video or because it is tagged or otherwise

mentioned in the post.

Example 6: An infomercial for a home fitness system is hosted by a well-known

actor. During the infomercial, the actor demonstrates the machine and states,

“This is the most effective and easy-to-use home exercise machine that I have

ever tried. Even if the actor is reading from a script, the statement would be an

endorsement, because consumers are likely to believe it reflects the actor’s

personal views.

Assume that, rather than speaking about their experience with or opinion of the

machine, the actor says that the machine was designed by exercise physiologists

at a leading university, that it isolates each of five major muscle groups, and that

it is meant to be used for fifteen minutes a day. After demonstrating various

exercises using the machine, the actor finally says how much the machine costs

and how to order it. As the actor does not say or do anything during the

infomercial that would lead viewers to believe that the actor is expressing their

own views about the machine, there is no endorsement.

Example 7: A consumer who regularly purchases a particular brand of dog food

decides one day to purchase a new, more expensive brand made by the same

manufacturer. The purchaser posts to their social media account that the change

in diet has made their dog’s fur noticeably softer and shinier, and that in her

opinion, the new dog food definitely is worth the extra money. Because the

consumer has no connection to the manufacturer beyond being an ordinary

purchaser, their message cannot be attributed to the manufacturer and the post

would not be deemed an endorsement under the Guides. The same would be true

if the purchaser writes a consumer product review on the manufacturer’s website,

a retailer’s website, or an independent review website.

Assume that rather than purchase the dog food with their own money, the

consumer receives it for free because the store routinely tracks purchases and the

dog food manufacturer arranged for the store to provide a coupon for a free trial

bag of its new brand to all purchasers of its existing brand. The manufacturer

does not ask coupon recipients for product reviews and recipients likely would not

assume that the manufacturer expects them to post reviews. The consumer’s post

would not be deemed an endorsement under the Guides because this unsolicited

review cannot be attributed to the manufacturer.

Assume now that the consumer joins a marketing program under which

participants periodically receive free products from various manufacturers and

can write reviews if they want to do so. If the consumer receives a free bag of the

new dog food through this program, their positive review would be considered an

endorsement under the Guides because of their connection to the manufacturer

through the marketing program.

Example 8: A college student, who has earned a reputation as an excellent video

game player, live streams their game play. The developer of a new video game

pays the student to play and live stream its new game. The student plays the

game and appears to enjoy it. Even though the college student does not expressly

recommend the game, the game play is considered an endorsement.

Example 9: An influencer who is paid to endorse a vitamin product in their

social media posts discloses their connection to the product’s manufacturer only

on the profile pages of their social media accounts. The disclosures are not clear

and conspicuous because people seeing their paid posts could easily miss the

disclosures.

Assume now that the influencer discloses their connection to the manufacturer in

the posts themselves, but that, in order to see the disclosures, consumers have to

click on a link labeled simply “more.” Those disclosures are not clear and

conspicuous.

Assume now that the influencer relies solely upon a social media platform’s built-

in disclosure tool for one of these posts. The disclosure appears in small white

text, it is set against the light background of the image that the influencer posted,

it competes with unrelated text that the influencer superimposed on the image,

and the post appears for only five seconds. The disclosure is easy to miss and

thus not clear and conspicuous.

Example 10: A television advertisement promotes a smartphone app that

purportedly halts cognitive decline. The ad presents multiple endorsements by

older senior citizens who are represented as actual consumers who used the app.

The advertisement discloses via both audio and visual means that the persons

featured are actors. Because the advertisement is targeted at older consumers,

whether the disclosure is clear and conspicuous will be evaluated from the

perspective of older consumers, including those with diminished auditory, visual,

or cognitive processing abilities.

Example 11: A social media advertisement promoting a cholesterol-lowering

product features a testimonialist who says how says by how much they lowered

their serum cholesterol. The claimed reduction greatly exceeds what is typically

experienced by users of the product and a disclosure of typical results is required.

The marketer has been able to identify from online data collection Spanish

speaking individuals with high cholesterol levels who are unable to understand

English and microtargets a Spanish-language version of the ad to them, disclosing

the typical results in English. The adequacy of the disclosure will be evaluated

from the perspective of the targeted individuals.

Assume now that the ad has a disclosure that is clear and conspicuous when

viewed on a computer browser but that is not clear and conspicuous when the ad

is rendered on a smartphone. Because some consumers will view the ad on their

smartphones, the disclosure is inadequate.

§ 255.1 General considerations.

(a) Endorsements must reflect the honest opinions, findings, beliefs, or experience of

the endorser. Furthermore, an endorsement may not convey any express or implied

representation that would be deceptive if made directly by the advertiser. [See §§

255.2(a) and (b) regarding substantiation of representations conveyed by consumer

endorsements.]

(b) An advertisement need not present an endorser’s message in the exact words of

the endorser unless the advertisement presents the endorsement as a quotation. However,

the endorsement may not be presented out of context or reworded so as to distort in any

way the endorser’s opinion or experience with the product. An advertiser may use an

endorsement of an expert or celebrity only so long as it has good reason to believe that

the endorser continues to subscribe to the views presented. An advertiser may satisfy this

obligation by securing the endorser’s views at reasonable intervals where reasonableness

will be determined by such factors as new information about the performance or

effectiveness of the product, a material alteration in the product, changes in the

performance of competitors’ products, and the advertiser’s contract commitments.

the endorser must have been a bona fide user of it at the time the endorsement was given.

Additionally, the advertiser may continue to run the advertisement only so long as it has

good reason to believe that the endorser remains a bona fide user of the product. [See §

255.1(b) regarding the “good reason to believe” requirement.]

(d) Advertisers are subject to liability for misleading or unsubstantiated statements

made through endorsements when there is a connection between the advertiser and the

endorser, or for failing to disclose unexpected material connections between themselves

and their endorsers. [See § 255.5]. An advertiser may be liable for an endorser’s

deceptive statement even when the endorser is not liable. Advertisers should: (1)

provide guidance to their endorsers on the need to ensure that their statements are not

misleading and to disclose unexpected material connections, (2) monitor their endorsers’

compliance, and (3) take action sufficient to remedy non-compliance and prevent future

non-compliance.

(e) Endorsers may be liable for statements made in the course of their endorsements,

such as when an endorser makes a representation that the endorser knows or should know

to be deceptive. Also, an endorser who is not an expert may be liable for misleading or

unsubstantiated representations regarding a product’s performance or effectiveness when

the representations: (1) are inconsistent with the endorser’s personal experience, or (2)

were not made or approved by the advertiser and go beyond the scope of the endorser’s

personal experience. [For the responsibilities of an endorser who is an expert, see §

255.3.] Endorsers may also be liable for failing to disclose unexpected material

connections between themselves and an advertiser, such as when an endorser creates and

disseminates endorsements without such disclosures.

(f) Intermediaries, such as advertising agencies and public relations firms, may be

liable for their roles in disseminating what they knew or should have known were

deceptive endorsements. They may also be liable for their roles with respect to

endorsements that fail to disclose unexpected material connections, whether by

disseminating advertisements without necessary disclosures or by hiring and directing

endorsers who fail to make necessary disclosures.

(g) The use of an endorsement with the image or likeness of a person other than the

actual endorser is deceptive if it misrepresents a material attribute of the endorser.

Example 1: A building contractor states in an advertisement disseminated by an

advertiser, “I use XYZ exterior house paint because of its remarkable quick

drying properties and durability.” This endorsement must comply with the

pertinent requirements of Section 255.3 (Expert Endorsements). Subsequently,

the advertiser reformulates its paint to enable it to cover exterior surfaces with

only one coat. Prior to continued use of the contractor’s endorsement, the

advertiser must contact the contractor in order to determine whether the contractor

would continue to use the paint and to subscribe to the views presented

previously.

Assume that, before the reformulation, the contractor had posted an endorsement

of the paint to their social media account. Even if the contractor would not use or

recommend the reformulated paint, there is no obligation to modify or delete their

post as long as the date of that post is clear and conspicuous to viewers. If the

contractor reposts or the advertiser shares the contractor’s original endorsement

after the reformulation, consumers would expect that the contractor continued to

hold the views expressed in the original post.

Example 2: In a radio advertisement, a well-known DJ talks about how much

they enjoy making coffee with a particular coffee maker in the morning. The

DJ’s comments likely communicate that they own and regularly use the coffee

maker. If they do not own it or used it only during a demonstration by its

manufacturer, the ad would be deceptive.

Example 3: A dermatologist is a paid advisor to a pharmaceutical company and

is asked by the company to post about its products on their professional social

media account. The dermatologist posts that the company’s newest acne

treatment product is “clinically proven” to work. Before giving the endorsement,

the dermatologist received a write-up of the clinical study in question, which

indicates flaws in the design and conduct of the study that are so serious that they

preclude any conclusions about the efficacy of the product. Given their medical

expertise, the dermatologist should have recognized the study’s flaws and is

subject to liability for their false statements made in the advertisement. The

advertiser is also liable for the misrepresentation made through the endorsement.

[See § 255.3 regarding the product evaluation that an expert endorser must

conduct.] Even if the study was sufficient to establish the product’s proven

efficacy, the pharmaceutical company and the dermatologist are both potentially

liable if the endorser fails to disclose their relationship to the company. [See §

255.5 regarding the disclosure of unexpected material connections.]

Assume that the expert had asked the pharmaceutical company for the evidence

supporting its claims and there were no apparent design or execution flaws in the

study shown to the expert, but that the pharmaceutical company had withheld a

larger and better controlled, non-published proprietary study of the acne treatment

which failed to find any statistically significant improvement in acne. The

expert’s “clinically proven” to work claim would be deceptive and the company

would be liable for the claim, but because the dermatologist did not have a reason

to know that the claim was deceptive, the expert would not be liable.

Example 4: A well-known celebrity appears in an infomercial for a hot air

roaster that purportedly cooks a chicken perfectly in twenty minutes. During the

shooting of the infomercial, the celebrity watches five attempts to cook chickens

using the roaster. In each attempt, the chicken is undercooked after twenty

minutes and requires forty-five minutes of cooking time. In the commercial, the

celebrity places an uncooked chicken in the roaster. The celebrity then takes from

a second roaster what appears to be a perfectly cooked chicken, tastes the chicken,

and says that if you want perfect chicken every time, in just twenty minutes, this

is the product you need. A significant percentage of consumers are likely to

believe the statement represents the celebrity’s own view and experience even

though the celebrity is reading from a script. Because the celebrity knows that

their statement is untrue, the endorser is subject to liability. The advertiser is also

liable for misrepresentations made through the endorsement.

Example 5: A skin care products advertiser hires an influencer to promote its

products on the influencer’s social media account. The advertiser requests that

the influencer try a new body lotion and post a video review of it. The advertiser

does not provide the influencer with any materials stating that the lotion cures

skin conditions and the influencer does not ask the advertiser if it does. However,

believing that the lotion cleared up their eczema, the influencer says in their

review, “This lotion cures eczema. All of my followers suffering from eczema

should use it.” The advertiser is subject to liability for misleading or

unsubstantiated representations made through the influencer’s endorsement.

Furthermore, the influencer, who did not limit their claims to their personal

experience and did not have a reasonable basis for their claim that the lotion cures

eczema, is subject to liability for the misleading or unsubstantiated representation

in endorsement. The influencer and the advertiser may also be liable if the

influencer fails to disclose clearly and conspicuously being paid for the

endorsement. [See § 255.5.]

In order to limit its potential liability, the advertiser should provide guidance to its

influencers concerning the need to ensure that statements they make are truthful

and substantiated and the need to disclose unexpected material connections and

take other steps to discourage or prevent non-compliance. The advertiser should

also monitor its influencers’ compliance and take steps necessary to remove and

halt the continued publication of deceptive representations when they are

discovered and to ensure the disclosure of unexpected material connections. [See

§§ 255.1(d) and 255.5]

Example 6: The website for an acne treatment features accurate testimonials of

users who say that the product improved their acne quickly and with no side

effects. Instead of using images of the actual endorsers, the website accompanies

the testimonials with pictures of different individuals with near perfect skin. The

images misrepresent the improvements to the endorsers’ complexions.

The same website also sells WeightAway shakes and features an accurate

testimonial from an individual who says, “I lost 50 pounds by just drinking the

shakes.” Instead of accompanying the testimonial with a picture of the actual

endorser, who went from 300 pounds to 250 pounds, the website shows a picture

of an individual who appears to weigh about 100 pounds. By suggesting that

WeightAway shakes caused the endorser to lose one-third of their original body

weight, the image misrepresents the product’s effectiveness. Even if it is

accompanied by a picture of the actual endorser, the testimonial could still

communicate a deceptive typicality claim.

Example 7: A learn-to-read program disseminates a sponsored social media post

by a parent saying that the program helped their child learn to read. The picture

accompanying the post is not of the endorser and their child. The testimonial is

from the parent of a 7-year-old, but the post shows an image of a child who

appears to be only 4 years old. By suggesting that the program taught a 4-year-

old to read, the image misrepresents the effectiveness of the program.

§ 255.2 Consumer endorsements.

(a) An advertisement employing endorsements by one or more consumers about the

performance of an advertised product or service will be interpreted as representing that

the product or service is effective for the purpose depicted in the advertisement.

Therefore, the advertiser must possess and rely upon adequate substantiation, including,

when appropriate, competent and reliable scientific evidence, to support express and

implied claims made through endorsements in the same manner the advertiser would be

required to do if it had made the representation directly, i.e., without using endorsements.

Consumer endorsements themselves are not competent and reliable scientific evidence.

(b) An advertisement containing an endorsement relating the experience of one or

more consumers on a central or key attribute of the product or service will likely be

interpreted as representing that the endorser’s experience is representative of what

consumers will generally achieve with the advertised product or service in actual, albeit

variable, conditions of use. Therefore, an advertiser should possess and rely upon

adequate substantiation for this representation. If the advertiser does not have

substantiation that the endorser’s experience is representative of what consumers will

generally achieve, the advertisement should clearly and conspicuously disclose the

generally expected performance in the depicted circumstances, and the advertiser must

possess and rely on adequate substantiation for that representation.

The disclosure of the

generally expected performance should be presented in a manner that does not itself

misrepresent what consumers can expect.

implication, to be “actual consumers” should utilize actual consumers in both the audio

and video, or clearly and conspicuously disclose that the persons in such advertisements

are not actual consumers of the advertised product.

(d) In procuring, suppressing, boosting, organizing, or editing consumer reviews of

their products, advertisers should not take actions that have the effect of distorting or

The Commission tested the communication of advertisements containing testimonials

that clearly and prominently disclosed either “Results not typical” or the stronger “These

testimonials are based on the experiences of a few people and you are not likely to have

similar results.” Neither disclosure adequately reduced the communication that the

experiences depicted are generally representative. Based upon this research, the

Commission believes that similar disclaimers regarding the limited applicability of an

endorser’s experience to what consumers may generally expect to achieve are unlikely to

be effective. Although the Commission would have the burden of proof in a law

enforcement action, the Commission notes that an advertiser possessing reliable

empirical testing demonstrating that the net impression of its advertisement with such a

disclaimer is non-deceptive will avoid the risk of the initiation of such an action in the

first instance.

otherwise misrepresenting what consumers think of their products, regardless of whether

the reviews are considered endorsements under the Guides.

Example 1: A web page for a baldness treatment consists entirely of testimonials

from satisfied customers who say that after using the product, they had amazing

hair growth and their hair is as thick and strong as it was when they were

teenagers. The advertiser must have competent and reliable scientific evidence

that its product is effective in producing new hair growth.

The web page will also likely communicate that the endorsers’ experiences are

representative of what new users of the product can generally expect. Therefore,

even if the advertiser includes a disclaimer such as, “Notice: These testimonials

do not prove our product works. You should not expect to have similar results,”

the ad is likely to be deceptive unless the advertiser has adequate substantiation

that new users typically will experience results similar to those experienced by the

testimonialists.

Example 2: An advertisement disseminated by a company that sells heat pumps

presents endorsements from three individuals who state that after installing the

Sellers are not required to display customer reviews that contain unlawful, harassing,

abusive, obscene, vulgar, or sexually explicit content, or content that is inappropriate with

respect to race, gender, sexuality, or ethnicity, or reviews that the seller reasonably

believes are fake, so long as the criteria for withholding reviews are applied uniformly to

all reviews submitted. Neither are sellers required to display reviews that are unrelated to

their products or services. Customer service, delivery, returns, and exchanges are related

to the seller’s products and services.

company’s heat pump in their homes, their monthly utility bills went down by

$100, $125, and $150, respectively. The ad will likely be interpreted as

conveying that such savings are representative of what consumers who buy the

heat pump can generally expect. The advertiser does not have substantiation for

that representation because, in fact, fewer than 20% of purchasers will save $100

or more. A disclosure such as, “Results not typical” or “These testimonials are

based on the experiences of a few people and you are not likely to have similar

results” is insufficient to prevent this ad from being deceptive because consumers

will still interpret the ad as conveying that the specified savings are representative

of what consumers can generally expect. The advertiser should clearly and

conspicuously disclose the generally expected savings and have adequate

substantiation that homeowners can achieve those results. There are multiple

ways that such a disclosure could be phrased, e.g., “the average homeowner saves

$35 per month,” “the typical family saves $50 per month during cold months and

$20 per month in warm months,” or “most families save 10% on their utility

bills.”

These disclosures could still be misleading, however, if they only apply to limited

circumstances that are not described in the advertisement. For example, if the

advertisement does not limit its claims by geography, it would be misleading if

the disclosure of expected results in a nationally disseminated advertisement was

based on the experiences of customers in a southern climate and the experiences

of those customers was much better than could be expected by heat pump users in

a northern climate..

Example 3: An advertisement for a cholesterol-lowering product features

individuals who claim that their serum cholesterol went down by 120 points and

130 points, respectively; the ad does not mention the endorsers having made any

lifestyle changes. A well-conducted clinical study shows that the product reduces

the cholesterol levels of individuals with elevated cholesterol by an average of

15% and the advertisement clearly and conspicuously discloses this fact. Despite

the presence of this disclosure, the advertisement would be deceptive if the

advertiser does not have competent and reliable scientific evidence that the

product can produce the specific results claimed by the endorsers (i.e., a 130-point

drop in serum cholesterol without any lifestyle changes).

Example 4: An advertisement for a weight-loss product features a formerly

obese person. The endorser says in the ad, “Every day, I drank 2 WeightAway

shakes, ate only raw vegetables, and exercised vigorously for six hours at the

gym. By the end of six months, I had gone from 250 pounds to 140 pounds.”

The advertisement accurately describes the endorser’s experience, and such a

result is within the range that would be generally experienced by an extremely

overweight individual who consumed WeightAway shakes, only ate raw

vegetables, and exercised as the endorser did. Because the endorser clearly

describes the limited and truly exceptional circumstances under which they

achieved the claimed results, the ad is not likely to convey that consumers who

weigh substantially less or use WeightAway under less extreme circumstances

will lose 110 pounds in six months. If the advertisement simply says that the

endorser lost 110 pounds in six months using WeightAway together with diet and

exercise, however, this description would not adequately alert consumers to the

truly remarkable circumstances leading to the endorser’s weight loss. The

advertiser must have substantiation, however, for any performance claims

conveyed by the endorsement (e.g., that WeightAway is an effective weight loss

product and that the endorser’s weight loss was not caused solely by their dietary

restrictions and exercise regimen).

If, in the alternative, the advertisement simply features “before” and “after”

pictures of a woman who says “I lost 50 pounds in 6 months with WeightAway,”

the ad is likely to convey that the endorser’s experience is representative of what

consumers will generally achieve. Therefore, if consumers cannot generally

expect to achieve such results, the ad would be deceptive. Instead, the ad should

clearly and conspicuously disclose what they can expect to lose in the depicted

circumstances (e.g., “women who use WeightAway for six months typically lose

15 pounds”). A disclosure such as “Average weight loss is 1-2 pounds per week”

is inadequate and likely deceptive. It does not communicate the period over

which such weight loss can be expected and likely implies that such weight loss

continues at that rate indefinitely.

If the ad features the same pictures but the testimonialist simply says, “I lost 50

pounds with WeightAway,” and WeightAway users generally do not lose 50

pounds, the ad should disclose what results they do generally achieve (e.g.,

“women who use WeightAway lose 15 pounds on average”). A disclosure such

as “most women who use WeightAway lose between 10 and 50 pounds” is

inadequate because the range specified is so broad that it does not sufficiently

communicate what users can generally expect.

Assume that a WeightAway advertisement contains a disclosure of generally

expected results that is based upon the mean weight loss of users. If the mean is

substantially affected by outliers, then the disclosure would be misleading. For

example, if the mean weight loss is 15 pounds, but the median weight loss is 8

pounds, it would be misleading to say that the average weight loss was 15 pounds.

In such cases, the disclosure’s use of median weight loss instead could help avoid

deception, e.g., “most users lose 8 pounds” or “the typical user loses 8 pounds.”

Assume that WeightAway’s manufacturer procured a fake consumer review,

reading “I lost 50 pounds with WeightAway,” and had it published on a third-

party review website. This endorsement is deceptive because it was not written

by a bona fide user. [See § 255.1(c)]. Moreover, the manufacturer would need

competent and reliable scientific evidence that WeightAway is capable of causing

50-pound weight loss.

Assume that WeightAway is a diet and exercise program and a person appearing

in a WeightAway ad says, “I lost 50 pounds in 6 months with WeightAway.”

Very few WeightAway users lose 50 pounds in 6 months and the ad discloses,

“The typical weight loss of WeightAway users who stick with the program for 6

months is 35 pounds.” In fact, only one-fifth of those who start the WeightAway

program stick with it for 6 months. The disclosure is inadequate because it does

not communicate what the typical outcome is for users who start the program. In

other words, even with the disclosure, the ad does not communicate what people

who join the WeightAway program can generally expect.

Example 5: An advertisement presents the results of a poll of consumers who

have used the advertiser’s cake mixes as well as their own recipes. The results

purport to show that the majority believed that their families could not tell the

difference between the advertised mix and their own cakes baked from scratch.

Many of the consumers are pictured in the advertisement along with relevant,

quoted portions of their statements endorsing the product. This use of the results

of a poll or survey of consumers represents that this is the typical result that

ordinary consumers can expect from the advertiser’s cake mix.

Example 6: An advertisement appears to show a “hidden camera” situation in a

crowded cafeteria at breakfast time. A spokesperson for the advertiser asks a

series of patrons of the cafeteria for their spontaneous, honest opinions of the

advertiser’s recently introduced breakfast cereal. Even though none of the patrons

is specifically identified during the advertisement, the net impression conveyed to

consumers may well be that these are actual customers. If actors have been

employed, this fact should be clearly and conspicuously disclosed.

Example 7: An advertisement for a recently released motion picture shows three

individuals coming out of a theater, each of whom gives a positive statement

about the movie. These individuals are actual consumers expressing their

personal views about the movie. The advertiser does not need to have

substantiation that their views are representative of the opinions that most

consumers will have about the movie. Because the consumers’ statements would

be understood to be the subjective opinions of only three people, this

advertisement is not likely to convey a typicality message.

If the motion picture studio had approached these individuals outside the theater

and offered them free tickets if they would talk about the movie on camera

afterwards or post about it on social media, that arrangement should be clearly

and conspicuously disclosed. [See § 255.5.]

Example 8: A camping goods retailer’s website has various product pages. Each

product page provides consumers with the opportunity to review the product and

rate it on a five-star scale. Each such page displays the product’s average star

rating and a breakdown of the number of reviews with each star rating, followed

by individual consumers’ reviews and ratings. As such, the website is

representing that it is providing an accurate reflection of the view of the

purchasers who submitted product reviews to the website. If the retailer chose to

suppress or otherwise not publish any reviews with fewer than four stars or

reviews that contain negative sentiments, the product pages would be misleading

as to purchasers’ actual opinions of the products.

If the retailer chose not to post reviews containing profanity, that would not be

unfair or deceptive even if reviews containing profanity tend to be negative

reviews. However, it would be misleading if the retailer blocked only negative

reviews containing profanity, but posted positive reviews containing profanity. It

would be acceptable for the retailer to have a policy against posting reviews

unrelated to the product at issue or related services, for example reviews

complaining about the owner’s policy positions. But it would be misleading if

the retailer chose to filter reviews based on other factors that are only a pretext for

filtering them based on negativity.

Assume now, that each product page starts with a glowing five-star review that is

labeled as “the most helpful review.” Labeling the review as the most helpful

suggests it was voted most helpful by consumers visiting the website. If the

initial review on each such page was selected by the retailer and was not selected

as the most helpful review by other consumers, labeling it as the most helpful

would be deceptive.

Example 9: A manufacturer offers to pay genuine purchasers $20 each to write

positive reviews of its products on third-party review websites. Such reviews are

deceptive even if the payment is disclosed because their positive nature is

required by, rather than being merely influenced by, the payment. If, however,

the manufacturer did not require the reviews to be positive and the reviewers

understood that there were no negative consequences from writing negative

reviews, a clear and conspicuous disclosure of the material connection would be

appropriate. [See § 255.5 and Example 6.]

Example 10: A manufacturer threatens consumers who post negative reviews of

its products to third-party review websites with legal action or with physical

threats in order to coerce the consumers to delete their reviews. Such threats

amount to an unfair practice because consumers would be misled as to

purchasers’ actual opinions of the product.

Example 11: A marketer contacts recent online, mail-order, and in-store

purchasers of its products and asks them to provide feedback to the marketer. The

marketer then invites purchasers who give very positive feedback to post online

reviews of the products on third-party websites. Less pleased and unhappy

purchasers are simply thanked for their feedback. Such a practice may be an

unfair or deceptive practice if it results in the posted reviews being substantially

The Consumer Review Fairness Act makes it illegal for companies to include

standardized contract provisions that threaten or penalize people for posting honest

reviews. 15 U.S.C. § 45b.

more positive than if the marketer had not engaged in the practice. If, in the

alternative, the marketer had simply invited all recent purchasers to provide

feedback on third-party websites, the solicitation would not have been unfair or

deceptive, even if it had expressed its hope for positive reviews.

§ 255.3 Expert endorsements.

(a) Whenever an advertisement represents, expressly or by implication, that the

endorser is an expert with respect to the endorsement message, then the endorser’s

qualifications must in fact give the endorser the expertise that the endorser is represented

as possessing with respect to the endorsement.

(b) Although an expert may, in endorsing a product, take into account factors not

within the endorser’s expertise (such as taste or price), the endorsement must be

supported by an actual exercise of that expertise in evaluating product features or

characteristics with respect to which the endorser has expertise and which are relevant to

an ordinary consumer’s use of or experience with the product. This evaluation must have

included an examination or testing of the product at least as extensive as someone with

the same degree of expertise would normally need to conduct in order to support the

conclusions presented in the endorsement. To the extent that the advertisement implies

that the endorsement was based upon a comparison to another product or other products,

such comparison must have been included in the expert’s evaluation; and as a result of

such comparison, the expert must have concluded that, with respect to those features on

which the endorser is expert and which are relevant and available to an ordinary

consumer, the endorsed product is at least equal overall to the competitors’ products.

Moreover, where the net impression created by the endorsement is that the advertised

product is superior to other products with respect to any such feature or features, then the

expert must in fact have found such superiority. [See § 255.1(e) and Example 3

regarding the liability of endorsers.]

Example 1: An endorsement of a particular automobile by one described as an

“engineer” implies that the endorser’s professional training and experience are

such that the endorser is well acquainted with the design and performance of

automobiles. If the endorser’s field is, for example, chemical engineering, the

endorsement would be deceptive.

Example 2: An endorser of a hearing aid is simply referred to as “Doctor” during

the course of an advertisement. The ad likely implies that the endorser is a

medical doctor with substantial experience in the area of hearing. If the endorser

is not a medical doctor with substantial experience in audiology, the endorsement

would likely be deceptive. A non-medical “doctor” (e.g., an individual with a

Ph.D. in audiology) or a physician without substantial experience in the area of

hearing might be able to endorse the product, but at minimum, the advertisement

must clearly and conspicuously disclose the nature and limits of the endorser’s

expertise

Example 3: A manufacturer of automobile parts advertises that its products are

approved by the “American Institute of Science.” From its name, consumers

would infer that the “American Institute of Science” is a bona fide independent

testing organization with expertise in judging automobile parts and that, as such, it

would not approve any automobile part without first testing its efficacy by means

of valid scientific methods. If the American Institute of Science is not such a

bona fide independent testing organization (e.g., if it was established and operated

by an automotive parts manufacturer), the endorsement would be deceptive. Even

if the American Institute of Science is an independent bona fide expert testing

organization, the endorsement may nevertheless be deceptive unless the Institute

has conducted valid scientific tests of the advertised products and the test results

support the endorsement message.

Example 4: A manufacturer of a non-prescription drug product represents that its

product has been selected over competing products by a large metropolitan

hospital. The hospital has selected the product because the manufacturer, unlike

its competitors, has packaged each dose of the product separately. This package

form is not generally available to the public. Under the circumstances, the

endorsement would be deceptive because the basis for the hospital’s choice –

convenience of packaging – is neither relevant nor available to consumers, and

the basis for the hospital’s decision is not disclosed to consumers.

Example 5: A person who is identified as the president of a commercial “home

cleaning service” states in a television advertisement that the service uses a

particular brand of cleanser, instead of leading competitors it has tried, because of

this brand’s performance. Because cleaning services extensively use cleansers in

the course of their business, the ad likely conveys that the president has

knowledge superior to that of ordinary consumers. Accordingly, the president’s

statement will be deemed to be an expert endorsement. The service must, of

course, actually use the endorsed cleanser. In addition, because the advertisement

implies that the cleaning service has experience with a reasonable number of

leading competitors’ brands available to consumers, the service must, in fact, have

such experience, and have determined, based on its expertise, that the endorsed

product’s cleaning ability is at least equal (or superior, if such is the net

impression conveyed by the advertisement) to that of the leading competitors’

products available to consumers. Because in this example the cleaning service’s

president makes no mention that the endorsed cleanser was “chosen,” “selected,”

or otherwise evaluated in side-by-side comparisons against its competitors, it is

sufficient if the service has relied solely upon its accumulated experience in

evaluating cleansers without having performed side-by-side or scientific

comparisons.

Example 6: A medical doctor states in an advertisement for a drug that the

product will safely allow consumers to lower their cholesterol by 50 points. If the

materials the doctor reviewed were merely letters from satisfied consumers or the

results of a rodent study, the endorsement would likely be deceptive because

those materials are not the type of scientific evidence that others with the

purported degree of expertise would consider adequate to support this conclusion

about the product’s safety and efficacy. Under such circumstances, both the

advertiser and the doctor would be liable for the doctor’s misleading

representation. [See § 255.1(d) and (e)].

§ 255.4 Endorsements by organizations.

Endorsements by organizations, especially expert ones, are viewed as representing the

judgment of a group whose collective experience exceeds that of any individual member,

and whose judgments are generally free of the sort of subjective factors that vary from

individual to individual. Therefore, an organization’s endorsement must be reached by a

process sufficient to ensure that the endorsement fairly reflects the collective judgment of

the organization. Moreover, if an organization is represented as being expert, then, in

conjunction with a proper exercise of its expertise in evaluating the product under § 255.3

(expert endorsements), it must utilize an expert or experts recognized as such by the

organization or standards previously adopted by the organization and suitable for judging

the relevant merits of such products. [See § 255.1(e) regarding the liability of endorsers.]

Example 1: A mattress manufacturer advertises that its product is endorsed by a

chiropractic association. Because the association would be regarded as expert

with respect to judging mattresses, its endorsement must be supported by an

evaluation by an expert or experts recognized as such by the organization, or by

compliance with standards previously adopted by the organization and aimed at

measuring the performance of mattresses in general and not designed with the

unique features of the advertised mattress in mind.

Example 2: A trampoline manufacturer sets up and operates what appears to be

an independent trampoline review website. The site reviews the manufacturer’s

trampolines, as well as those of competing manufacturers. Because the website

falsely appears to be independent, it is deceptive. [See § 255.5].

Example 3: Assume that a third party operates a wireless headphone review

website that provides rankings of different manufacturers’ wireless headphones

from most recommended to least recommended. The website operator accepts

money from manufacturers in exchange for higher rankings of their products.

Regardless of whether the website makes express claims of objectivity or

independence, such paid-for rankings are deceptive. A headphone manufacturer

who pays for a higher ranking on the website may also be held liable for the

deception. A disclosure that the website operator receives payments from

headphone manufacturers would be inadequate because the payments actually

determine the headphones’ relative rankings. If, however, the review website

does not take payments for higher rankings, but receives payments from some of

the headphone manufacturers, such as for affiliate link referrals, it should clearly

and conspicuously disclose that it receives such payments. [See § 255.5, Example

11.]

§ 255.5 Disclosure of material connections.

When there exists a connection between the endorser and the seller of the advertised

product that might materially affect the weight or credibility of the endorsement and that

connection is not reasonably expected by the audience, such connection must be

disclosed clearly and conspicuously. Material connections can include a business,

family, or personal relationship. They can include monetary payment or the provision of

free or discounted products or services (including products or services unrelated to the

endorsed product) to an endorser, regardless of whether the advertiser requires an

endorsement in return. Material connections can also include other benefits to the

endorser, such as early access to a product or the possibility of being paid, of winning a

prize, or of appearing on television or in other media promotions. Some connections may

be immaterial because they are too insignificant to affect the weight or credibility given

to endorsements. Material connections do not need to be disclosed when they are

understood or expected by all but an insignificant portion of the audience for an

endorsement. A disclosure of a material connection does not require the complete details

of the connection, but it must clearly communicate the nature of the connection

sufficiently for consumers to evaluate its significance. Additional guidance is provided

by the examples below.

Example 1: A drug company commissions research on its product by an outside

organization. The drug company determines the overall subject of the research

(e.g., to test the efficacy of a newly developed product) and pays a substantial

share of the expenses of the research project, but the research organization

determines the protocol for the study and is responsible for conducting it. A

subsequent advertisement by the drug company mentions the research results as

the “findings” of that research organization. Although the design and conduct of

the research project are controlled by the outside research organization, the weight

consumers place on the reported results could be materially affected by knowing

that the advertiser had funded the project. Therefore, the advertiser’s payment of

expenses to the research organization should be disclosed in the advertisement.

Example 2: A film star endorses a particular food product in a television

commercial. The endorsement regards only points of taste and individual

preference. This endorsement must, of course, comply with § 255.1; but,

regardless of whether the star’s compensation for the commercial is a $1 million

cash payment or a royalty for each product sold by the advertiser during the next

year, no disclosure is required because such payments likely are ordinarily

expected by viewers.

Example 3: During an appearance by a well-known professional tennis player on

a television talk show, the host comments that the past few months have been the

best of the player’s career and during this time the player has risen to their highest

level ever in the rankings. The player responds by attributing that improvement to

seeing the ball better, ever since having laser vision correction surgery at a

specific identified clinic. The athlete continues talking about the ease of the

procedure, the kindness of the clinic’s doctors, the short recovery time, and now

being able to engage in a variety of activities without glasses, including driving at

night. The athlete does not disclose having a contractual relationship with the

clinic that includes payment for speaking publicly about the surgery. Consumers

might not realize that a celebrity discussing a medical procedure in a television

interview has been paid for doing so, and knowledge of such payments would

likely affect the weight or credibility consumers give to the celebrity’s

endorsement. Without a clear and conspicuous disclosure during the interview

that the athlete has been engaged as a spokesperson for the clinic, this

endorsement is likely to be deceptive. A disclosure during the show’s closing

credits would not be clear and conspicuous. Furthermore, if consumers are likely

to take away from the interview that the athlete’s experience is typical of those

who undergo the same procedure at the clinic, the advertiser must have

substantiation for that claim.

Assume that the tennis player also touts the results of the surgery – mentioning

the clinic by name – in a social media post. Consumers might not realize that the

athlete is a paid endorser and, because that information might affect the weight

consumers give to the tennis player’s endorsement, the relationship with the clinic

should be disclosed – regardless of whether it paid the athlete for that particular

post. It should be disclosed even if the relationship involves no payments but

only the tennis player getting the laser correction surgery for free or at a reduced

cost.

Assume that the clinic uses the tennis player’s endorsement in its own social

media posts. The clinic should clearly and conspicuously disclose its relationship

to the athlete in its posts.

Assume that during the appearance on the television talk show, the tennis player

is wearing clothes bearing the insignia of an athletic wear company with which

the athlete also has an endorsement contract. Although this contract requires

wearing the company’s clothes not only on the court but also in public

appearances, when possible, the athlete does not mention the clothes or the

company during the appearance on the show. No disclosure is required because

no representation is being made about the clothes in this context.

Example 4: A television ad for an anti-snoring product features a physician who

says, “I have seen dozens of products come on the market over the years and, in

my opinion, this is the best ever.” Consumers would expect the physician to be

reasonably compensated for appearing in the ad. Consumers are unlikely,

however, to expect that an expert endorser like the physician receives a

percentage of gross product sales or owns part of the company, and either of these

facts would likely materially affect the credibility that consumers attach to the

endorsement. Accordingly, the advertisement should clearly and conspicuously

disclose such a connection between the company and the physician.

Assume that the physician is also paid to post about the product on social media, a

context in which consumers might not expect that the physician was compensated

and

more likely to expect that the physician is expressing an independent,

professional opinion. Accordingly, the post should clearly and conspicuously

disclose the doctor’s connection with the company.

Example 5: In a television advertisement, an actual patron of a restaurant, who is

neither known to the public nor presented as an expert, is shown seated at the

counter. The diner is asked for a “spontaneous” opinion of a new food product

served in the restaurant. Assume, first, that the advertiser had posted a sign on the

door of the restaurant informing all who entered that day that patrons would be

interviewed by the advertiser as part of its television promotion of its new “meat-

alternative” burger. A patron seeing such a sign might be more inclined to give a

positive review of that item in order to appear on television. The advertisement

should thus clearly and conspicuously inform viewers that the patrons on screen

knew in advance that they might appear in a television advertisement if they gave

the burger a good review because that information may materially affect the

weight or credibility of the endorsement.

Assume, in the alternative, that the advertiser had not posted the sign and that

patrons asked for their opinions about the burger did not know or have reason to

believe until after their response that they were being recorded for use in an

advertisement. No disclosure is required here, even if patrons were also told, after

the interview, that they would be paid for allowing the use of their opinions in

advertising.

Example 6: An infomercial producer wants to include consumer endorsements in

an infomercial for an automotive additive product not yet on the market. The

producer’s staff selects several people who work as “extras” in commercials and

asks them to use the product and report back, telling them that they will be paid a

small amount if selected to endorse the product in the infomercial. Viewers

would not expect that these “consumer endorsers” are actors who used the product

in the hope of appearing in the commercial and receiving compensation. Because

the advertisement fails to disclose these facts, it is deceptive.

Assume that the additive’s marketer wants to have more consumer reviews appear

on its retail website which sells a variety of its automotive products. The

marketer recruits ordinary consumers to get a free product (e.g., a set of jumper

cables or a portable air compressor for car tires) and a $30 payment in exchange

for posting a consumer review of the free product on the marketer’s website. The

marketer makes clear and the reviewers understand that they are free to write

negative reviews and that there are no negative consequences of doing so. Any

resulting review that fails to clearly and conspicuously disclose the incentives

provided to that reviewer is likely deceptive. [When the resulting reviews must be

positive or reviewers believe they might face negative consequences from posting

negative reviews, a disclosure would be insufficient, see § 255.2(d) and Example

9 of § 255.2.] Even if adequate disclosures appear in each incentivized review,

the practice could still be deceptive if the solicited reviews contain star ratings

that are included in an average star rating for the product and including the

incentivized reviews materially increases that average star rating.

Example 7: A woodworking influencer

posts on-demand videos of various projects. A tool manufacturer sends the influencer an

expensive full-size lathe in the hope that the influencer would post about it. The

woodworker uses the lathe for several products and comments favorably about it in

videos. If a significant proportion of viewers are likely unaware that the influencer

received the lathe free of charge, the woodworker should clearly and conspicuously

disclose receiving it for free, a fact that could affect the credibility that viewers attach to

the endorsements. The manufacturer should advise the woodworker at the time it

provides the lathe that this connection should be disclosed, and it should have reasonable

procedures in place to monitor the influencer’s postings for compliance and follow those

procedures. [See § 255.1(d).]

Example 8: An online community has a section dedicated to discussions of

robotic products. Community members ask and answer questions and otherwise

exchange information and opinions about robotic products and developments.

Unbeknownst to this community, an employee of a leading home robot

manufacturer has been posting messages on the discussion board promoting the

manufacturer’s new product. Knowledge of this poster’s employment likely

would affect the weight or credibility of the endorsements. Therefore, the poster

should clearly and conspicuously disclose their relationship to the manufacturer to

community members. To limit its own liability for such posts, the employer

should be engaged in appropriate training of employees. To the extent that the

employer has directed such endorsements or otherwise has reason to know about

them, it should also be monitoring them and taking other steps to ensure

compliance. [See § 255.1(d).] The disclosure requirements in this example

would apply equally to consumer reviews of the product posted on retail websites

or review platforms.

Example 9: A college student signs up to be part of a program in which points

are awarded each time a participant posts on social media about a particular

advertiser’s products. Participants can then exchange their points for prizes, such

as concert tickets or electronics. These incentives would materially affect the

weight or credibility of the college student’s endorsements. They should be

clearly and conspicuously disclosed, and the advertiser should take steps to ensure

that these disclosures are being provided.

Example 10: Great Paper Company sells photocopy paper with packaging that

has a seal of approval from the No Chlorine Products Association, a non-profit

third-party association. Great Paper Company paid the No Chlorine Products

Association a reasonable fee for the evaluation of its product and its

manufacturing process. Consumers would reasonably expect that marketers have

to pay for this kind of certification. Therefore, there is no unexpected material

connection between the company and the association, and the use of the seal

without disclosure of the fee paid to the association would not be deceptive.

Example 11: A coffee lover creates a blog that reviews coffee makers. The

blogger writes the content independently of the marketers of the coffee makers,

but includes affiliate links to websites on which consumers can buy these products

from their marketers. Whenever a consumer clicks on such a link and buys the

product, the blogger receives a small portion of the sale. Because knowledge of

this compensation could affect the weight or credibility site visitors give to the

blogger’s reviews, the reviews should clearly and conspicuously disclose the

compensation.

Example 12: Near the beginning of a podcast, the host reads what is obviously a

commercial for a product. Even without a statement identifying the advertiser as

a sponsor, listeners would likely still expect that the podcaster was compensated,

so there is no need for a disclosure of payment for the commercial. Depending

upon the language of the commercial, however, the audience may believe that the

host is expressing their own views in the commercial, in which case the host

would need to hold the views expressed. [See § 255.0(b).]

Assume that the host also mentions the product in a social media post. The fact

that the host did not have to make a disclosure in the podcast has no bearing on

whether there has to be a disclosure in the social media post.

§ 255.6 Endorsements directed to children.

Endorsements in advertisements addressed to children may be of special concern because

of the character of the audience. Practices which would not ordinarily be questioned in

advertisements addressed to adults might be questioned in such cases.

By direction of the Commission.

April J. Tabor,

Secretary