• Testimonials and Endorsements: Can They Say That?
  • January 9, 2004 | Author: Stephen R. Bergerson
  • Law Firm: Fredrikson & Byron, P.A. - Minneapolis Office
  • Many advertisers are surprised to learn that the Federal Trade Commission has rules for endorsements and testimonials.

    An endorsement or testimonial (they're treated identically) is defined as any advertising message that consumers are likely to believe reflects the personal opinions, beliefs, findings or experience of the person giving the endorsement or testimonial.

    As always in advertising law, consumer perception is legal reality.

    For example, if a TV commercial depicts two female actors discussing a detergent in a supermarket, one's comment to the other about how well her brand works would be considered a fictional dramatization, not an endorsement, if the dramatization is obvious. The rule prohibits the undisclosed use of professional actors to simulate endorsements of 'ordinary consumers.'

    Or suppose that an on-screen actor touts a drug's ability to deliver fast pain relief. If he reasonably appears to be speaking on behalf of the advertiser (rather than himself), he would be considered a "spokesperson," not an endorser.

    But if a tire manufacturer hires a well-known racing driver who speaks of the tires' smooth ride, strength and long life, even though the message is not expressly represented as the driver's personal opinion it would constitute an endorsement if people understood what he said to be based on his personal experience.

    Generally, endorsements must:

    1. reflect the current, honest and sincere views of the endorser,
    2. only make product claims that the advertiser itself could lawfully make, and
    3. reflect what others can typically expect from the product.

    The FTC rule also addresses many specific practices.

    For example, while it does not require using an endorser's exact words, an advertiser cannot present them out of context or edit or reword them to misrepresent the endorser's meaning.

    Further, if the ad represents (explicitly or implicitly) that the endorser uses a product, the rule requires that he or she be a "bona fide" (not token or occasional) user at the time the endorsement was given. The advertiser can use the endorsement only so long as it has good reason to believe that the endorser continues to have the views presented.

    The rule also requires that any material connections between an endorser and the advertiser that is not reasonably expected by the audience and could materially affect the credibility of the endorsement be disclosed. For example, Pat Boone was brought to task by the Commission for failing to disclose his ownership of the company that manufactured Acne-Statin, the acne treatment he endorsed.

    An example of a connection that is ordinarily expected by viewers and need not be disclosed is the payment or promise of payment to an endorser who is an expert or well-known personality, as long as the advertiser does not represent that the endorsement was given without compensation.

    If a person is given (or promised) something in return for an endorsement, that must be disclosed. But, if he or she is compensated after the endorsement has been given, no disclosure is required because the compensation did not affect what they said. Consequently, the practice is to compensate endorsers after they have given the endorsement for the right to use the endorsement (not for giving it).

    Whenever an ad represents that the endorser is an expert, the endorser must actually have that expertise. Pat Boone also violated this portion of the rule because he lacked sufficient expertise in acne treatment.

    An expert's endorsement must be:

    1. based on the actual exercise of his or her expertise in evaluating the product and
    2. done in a manner that is at least as extensive as other experts would expect. Where the expert represents that the advertised product is superior to other products, the expert must have performed legitimate comparisons.

    Suppose, for example, that an ad says an association of professional athletics has "selected" a brand of beverages as its "official breakfast drink." Under the rule, the association would probably be perceived as having nutritional expertise. Not only would this endorsement have to be based on an expert evaluation of the nutritional value of the endorsed beverage, its use of the word "selected" implies that the endorsement was given only after methodologically sound competitive comparisons had been made.

    While this discussion covers only some of the practices addressed by the FTC's endorsement-testimonial rule, it does indicate how easily an advertiser can unwittingly stick an endorser's foot into its own mouth.