Advertising Law Tool Kit - Twelfth Edition | 2024

Venable / 83 82 / Venable When using endorsements or testimonials to market your product or service, you should ask yourself the following important questions: • Does the endorsement 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 does 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 actually evaluate the product or service? • If you are soliciting, posting, and/or aggregating customer reviews, are you doing so in a way that does not mischaracterize the nature of your customers’ feedback? For example, are you including the negative reviews too? The Federal Trade Commission (FTC) continues to enforce its rules on endorsements and testimonials. As influencer marketing grows, that effort will certainly persist. There are strict requirements imposed on advertisers and marketers to substantiate the claims made by endorsers of a product or service. Long gone are the days when a simple “results not typical” disclaimer sufficed. If the testimonialists’ experience is not typical, 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. 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, including in social media posts. 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. Customer reviews are another form of endorsement. As the power of customer reviews as a marketing tool continues to grow, so does the FTC’s interest in ensuring reviews are not manipulated or used in an unfair or deceptive manner. Testimonials, Endorsements, and Customer Reviews Shahin O. Rothermel sorothermel@Venable.com +1 202.344.4550