Advertising Law Tool Kit 13th Edition 2025

Venable / 89 88 / 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? When using customer reviews in advertising, consider the following: • 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 or are you sorting reviews by favorability rating? • Are you paying for or giving incentives in exchange for positive reviews of your product or negative reviews of a competitor’s products? • If you are featuring customer reviews in advertising, are you confirming that the customers are real people who have experience with your product or service? The Federal Trade Commission (FTC) continues to enforce its rules on endorsements and testimonials. As influencer marketing grows, and companies increasingly rely on customer reviews and testimonials, the FTC has increased its scrutiny in this area. There are strict requirements imposed on advertisers and marketers to substantiate the claims made by endorsers of a product or service. Gone are the days when a simple “results not typical” disclaimer sufficed. If a testimonialist’s experience is not typical, the FTC requires the advertising to clearly and conspicuously disclose the results that average consumers can expect to achieve in the circumstances shown in the ad. Material connections between marketers and endorsers must be disclosed. If there is a connection that might affect the weight or credibility that consumers attach to the endorsement, it must be 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 marketing. The FTC has tightened regulations on customer reviews, including by issuing a new Trade Regulation Rule on the Use of Consumer Reviews and Testimonials. The rule will permit the FTC to obtain substantial monetary relief for violations of its standards. Testimonials, Endorsements, and Customer Reviews Shahin O. Rothermel sorothermel@Venable.com