Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 79 78 / Venable Leonard L. Gordon lgordon@Venable.com +1 212.370.6252 The Federal Trade Commission (FTC) continues to place strict requirements on advertisers and marketers to substantiate the claims made by endorsers of a product or service. As influencer marketing continues to grow, that effort will certainly continue. Long gone are the days when a simple, “results not typical” disclaimer sufficed. The FTC requires testimonials to clearly and conspicuously disclose the results that consumers can generally expect to achieve in the circumstances shown in the ad, if the testimonialists’ experience is not typical. Material connections between marketers and endorsers must be disclosed. In other words, if there is a connection that might affect the weight or credibility that consumers attach to the endorsement, it must be fully disclosed. This is especially true in influencer marketing. Increasingly, companies are using social media and social media influencers to promote their products. The use of influencers is itself a type of endorsement and can raise particularly challenging issues. Please see the section titled “Social Media, Influencers, and Endorsements” for more information on this area. When using endorsements or testimonials to market your product or service, you should ask yourself the following important questions: • Does the endorsement fail to accurately represent the endorser’s experience with the product? • Is the endorser’s experience typical of what a user of the product or service can expect? • Was a non-celebrity endorser aware of the possibility of payment prior to making the endorsement? Were they supplied with free product or some other benefit, such as a discount or entry into a sweepstakes? • Celebrity endorsers do not need to disclose payment in recognized advertising, but is it clear that the endorsement is an ad? For example, a celebrity tweet may not be perceived as an ad. For further discussion of endorsements and social media, see the next section. • Do you or your organization have an undisclosed relationship with the endorser that could lead to possible bias (e.g., a family member or an employee)? • If your endorser is an “expert” with respect to the product or service, did he/she fail to actually evaluate the product or service? Testimonials and Endorsements