[Federal Register Volume 73, Number 230 (Friday, November 28, 2008)]
[Proposed Rules]
[Pages 72374-72395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28294]


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FEDERAL TRADE COMMISSION

16 CFR Part 255


Guides Concerning the Use of Endorsements and Testimonials in 
Advertising

AGENCY: Federal Trade Commission.

ACTION: Notice of proposed changes to Guides. Request for public 
comments.

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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: Written comments must be received by January 30, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form.

[[Page 72375]]

Comments should refer to ``Endorsement Guides Review, Project No. 
P034520'' to facilitate the organization of comments. Please note that 
comments will be placed on the public record of this proceeding--
including on the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm)--and therefore should not include 
any sensitive or confidential information. In particular, comments 
should not include any sensitive personal information, such as an 
individual'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. Comments also should not include any sensitive 
health information, such as medical records or other individually 
identifiable health information. In addition, comments should not 
include any ``[t]rade secrets and commercial or financial information 
obtained from a person and privileged or confidential. . . .,'' as 
provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and 
Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). 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).\1\
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    \1\ FTC Rule 4.2(d), 16 CFR 4.2(d). The comment must be 
accompanied by an explicit request for confidential treatment, 
including the factual and legal basis for the request, and must 
identify the specific portions of the comment to be withheld from 
the public record. The request will be granted or denied by the 
Commission's General Counsel, consistent with applicable law and the 
public interest. See FTC Rule 4.9(c), 16 CFR 4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink: (https://secure.commentworks.com/ftc-endorsements) (and following the 
instructions on the web-based form). To ensure that the Commission 
considers an electronic comment, you must file it on the web-based form 
at the weblink (https://secure.commentworks.com/ftc-endorsements). If 
this Notice appears at (https://www.regulations.gov/search/index.jsp), 
you may also file an electronic comment through that website. The 
Commission will consider all comments that regulations.gov forwards to 
it. You may also visit the FTC website at http://www.ftc.gov to read 
the Notice and the news release describing it.
    A comment filed in paper form should include the ``Endorsement 
Guides Review, Project No. P034520'' reference both in the text and on 
the envelope, and should be mailed or delivered to the following 
address: Federal Trade Commission, Office of the Secretary, Room H-135 
(Annex S), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC 
is requesting that any comment filed in paper form be sent by courier 
or overnight service, if possible, because U.S. postal mail in the 
Washington area and at the Commission is subject to delay due to 
heightened security precautions.
    The Federal Trade Commission Act (``FTC Act'') and other laws 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 that it receives, 
whether filed in paper or electronic form. Comments received will be 
available to the public on the FTC website, to the extent practicable, 
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of 
discretion, the Commission makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC website. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).

FOR FURTHER INFORMATION CONTACT: Shira Modell, Attorney, Division of 
Advertising Practices, Bureau of Consumer Protection, Federal Trade 
Commission, Washington, D.C., 20580; (202) 326-3116.

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 C.F.R. 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.
    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 C.F.R. Sec. Sec.  255.0(a) and 
(b). The Guides state that endorsements must reflect the honest 
opinions, findings, beliefs, or experience of the endorser. 16 C.F.R. 
Sec.  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 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 C.F.R. 
Sec.  255.2(a). If an advertiser does not have adequate substantiation 
that the endorser's experience is representative, the advertisement 
should clearly and conspicuously disclose either what the generally 
expected performance would be in the depicted circumstances or the 
limited applicability of the endorser's experience to what consumers 
may generally expect to achieve. 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 C.F.R. Sec.  255.0(d). 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 
C.F.R. Sec.  255.3(a). Moreover, an expert endorsement must be 
supported by an actual exercise of 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

[[Page 72376]]

need to conduct in order to support the conclusions presented. 16 
C.F.R. Sec.  255.3(b).
    Among other things, the Guides also state that:
    (1) 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 C.F.R. Sec.  255.2(b).
    (2) 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 C.F.R. Sec.  255.4.
    (3) 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 
C.F.R. Sec.  255.5.

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 Fed. Reg. 25548 (1972). Extensive comment was received 
from interested parties. On May 21, 1975, the Commission promulgated 
three sections of the 1972 proposal as final guidelines (16 C.F.R. 
Sec. Sec.  255.0, 255.3, and 255.4) and republished three others, in 
modified form, for additional public comment. 40 Fed. Reg. 22127 
(1975); 40 Fed. Reg. 22146 (1975). Public comment was received 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 C.F.R. Sec. Sec.  255.1, 255.2, and 
255.5) and modified one example to one of the final guidelines adopted 
in May 1975 (16 C.F.R. Sec.  255.0 Example 4). 45 Fed. Reg. 3870 
(1980).
    In January 2007, 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 its 
Guides Concerning the Use of Endorsements and Testimonials in 
Advertising. 72 Fed. Reg. 2214 (Jan. 18, 2007). The Commission 
simultaneously put on the public record and requested comment on two 
reports on consumer research regarding the messages conveyed by 
consumer endorsements, as well as several other endorsement-related 
issues, including the use of so-called ``disclaimers of typicality'' 
accompanying testimonials that do not represent experiences consumers 
will generally achieve with the advertised product.\2\ The first 
report, ``The Effect of Consumer Testimonials and Disclosures of Ad 
Communication for a Dietary Supplement'' (``the Endorsement Booklet 
Study''), was designed to examine whether consumer endorsements 
communicate product efficacy and typicality, and whether any of several 
prominent disclosures qualify or limit the claims conveyed by the ads. 
The second report, ``Effects of Consumer Testimonials in Weight Loss, 
Dietary Supplement and Business Opportunity Advertisements'' (``the 
Second Endorsement Study''), was designed to explore the communication 
of product efficacy and typicality by advertisements containing 
testimonials of individuals who claimed to have achieved specific (that 
is, numerically quantified) results with the advertised product or 
system. Those reports are discussed in Part IV, below.
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    \2\ The reports are available on the Commission's website, 
www.ftc.gov/opa/2007/01/fyi0707.shtm, or from the Commission's 
Public Reference Office, Room 130, 600 Pennsylvania Avenue, N.W., 
Washington, D.C. 20580.
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    The Commission received 22 comments in response to its regulatory 
review notice.\3\ Having considered those comments, as well as the 
staff's consumer research, and its own extensive consumer protection 
experience, the Commission now proposes various amendments to the 
Guides and invites comments on these proposed changes.
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    \3\ Brittany Adams (``Adams''); American Association of 
Advertising Agencies/American Advertising Federation (``AAAA/AAF''); 
American Herbal Products Association (``AHPA''); Association of 
National Advertisers (``ANA''); Attorneys General of 33 States and 
Territories and Hawaii Office of Consumer Protection (``Attorneys 
General''); Stephen Calkins (``Calkins''); Center for Obesity 
Research and Education (``CORE''); Council of Better Business 
Bureaus, Inc. (``CBBB''); Electronic Retailing Association/Council 
for Responsible Nutrition (``ERA/CRN''); FreedomWorks; Jenny Craig, 
Inc. (``Jenny Craig''); Kelly Drye Collier Shannon (``Kelley 
Drye''); National Association of Consumer Agency Administrators 
(``NACAA''); Natural Products Association (``NPA''); NutriSystem, 
Inc. (``NutriSystem''); James Petkun (``Petkun''); Product Partners, 
LLC (``Product Partners''); Richard Pu (``Pu''); Jay Satz, Ph.D. 
(Vice President of Program and Product Development, NutriSystem, 
Inc.) (``Satz''); Senator Arlen Specter (``Specter''); Washington 
Legal Foundation (``WLF''); and Word of Mouth Marketing Association 
(``WOMMA''). With the exception of certain confidential materials 
submitted by NutriSystem, the comments are available online at 
(http://www.ftc.gov/os/comments/endorsementguides/index.shtm.)
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III. DISCUSSION OF COMMENTS RECEIVED IN RESPONSE TO REGULATORY REVIEW 
NOTICE

    A number of the comments specifically praised the current Guides 
for striking an appropriate balance between protecting consumers and 
allowing advertisers to communicate creatively and effectively to 
potential customers.\4\ Several others also noted that the Guides are 
beneficial and should be retained;\5\ one commenter stated that Guides 
were needed even more today than when they were originally issued.\6\ 
One comment suggested that the current Guides are more restrictive than 
necessary to protect consumers.\7\
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    \4\ ANA, at 2, 6; AAAA/AAF, at 2; Specter, at 1; ERA/CRN, at 5-
6.
    \5\ Petkun, at 1; NACAA, at 1; Attorneys General, at 1; Jenny 
Craig, at 1; AHPA, at 3-5.
    \6\ CBBB, at 2.
    \7\ Kelley Drye, at 2.
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    Most of the comments submitted in response to the January 2007 
Federal Register notice, however, responded to specific questions the 
Commission posed concerning the provisions of the current Guides that 
address (1) the use of consumer endorsements reflecting experiences 
exceeding those that consumers can generally expect to achieve with the 
advertised product, or (2) the disclosure of material connections 
between advertisers and endorsers. Those comments are discussed in Part 
IV, below, in the context of the specific Guide provisions to which 
they relate.
    In addition, a few comments addressed other issues. For example, 
several noted that advertisers have started using some new technologies 
to reach consumers in recent years.\8\ Two suggested that the 
Commission consider whether the Guides should be revised to deal with 
new types of advertising (e.g., to include examples using email or the 
Internet).\9\ Another noted that unlike the case with traditional 
media, the marketer is not in complete control of the message when 
certain of these new technologies are used; for example, in word-of-
mouth marketing, the marketer may initially share information with one 
consumer, but subsequent exchanges between that consumer and others are 
outside the marketer's control.\10\ This commenter pointed out that the 
current Guides have one standard for both traditional advertising and 
non-traditional (unmeasured) marketing, despite ``the vastly different 
levels of control that can be exercised by marketers using embedded 
advertising

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versus word of mouth and non-traditional (unmeasured) media.''\11\
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    \8\ Petkun, at 1-2; AHPA, at 6; WOMMA, at 4. See also Jenny 
Craig, at 1 (suggesting that the Commission focus its review of the 
Guides on how to contemporize them in light of new technologies and 
marketing practices).
    \9\ AHPA, at 6-7; Jenny Craig, at 1.
    \10\ WOMMA, at 5.
    \11\ Id. at 9.
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    The Commission agrees that it would be useful to illustrate the 
application of the Guides' long-established principles to new media. 
Although these fields are still evolving, the Commission is proposing 
to include in the Guides several new examples that address the issues 
of advertiser and endorser liability and disclosure of material 
connections in various high-tech contexts.\12\
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    \12\ One comment said that the Guides should provide for a 
private cause of action and recovery of attorneys' fees, so that the 
private bar would have an incentive to bring legal actions on behalf 
of consumers injured by noncompliant advertisers. Pu, at 1. As noted 
above, the Guides merely provide insight into how the Commission 
interprets existing laws, and do not, in and of themselves, create 
substantive law.
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IV. SECTION-BY-SECTION DISCUSSION OF PROPOSED REVISIONS TO GUIDES, 
COMMENTS RECEIVED IN RESPONSE TO JANUARY 2007 FEDERAL REGISTER NOTICE, 
AND REQUESTS FOR ADDITIONAL COMMENT

    The Commission has concluded 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 that are not expressly set forth in the current Guides, but 
have been 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 January 2007 
Regulatory Review notice.
    The Commission seeks comments on these proposed revisions, which 
are discussed below by Section.\13\
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    \13\ The Commission also intends to make a number of non-
substantive changes to improve syntax or to update examples to 
reflect changes that have occurred over the past twenty-five years. 
For instance, in Example 2 to Section 255.1, the ``executive 
secretary'' is being changed to an ``administrative assistant'' and 
the product in question is being updated from an ``electric 
typewriter'' to a ``computer keyboard.'' Such changes are not 
discussed below.
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A. Section 255.0--Definitions

    The Guides currently begin with a definitions section, which the 
Commission proposes to expand to include an introductory subsection 
explaining the purpose of the Guides. This new Section 255.0(a) would 
note that the Guides are administrative interpretations of laws 
enforced by the Commission and provide the basis for voluntary 
compliance with the law by advertisers and endorsers.\14\ It would also 
indicate that, although the Guides set forth the general principles 
that the Commission will apply in examining endorsements, the question 
of whether a particular endorsement or testimonial is deceptive will 
depend on the specific factual circumstances of the advertisement at 
issue. Other Commission guides begin with similar statements.\15\
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    \14\ Subsection (a), (c), and (d) of the current Guides would be 
redesignated as subsections (c), (d) and (e), respectively.
    \15\ See, e.g., Guides for Private Vocational and Distance 
Education Schools, 16 C.F.R. Sec.  254.0(b); Guides for the Use of 
Environmental Marketing Claims, 16 C.F.R. Sec.  260.1.
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    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. The Commission proposes revising that section to clarify 
that in determining whether statements in an ad constitute an 
endorsement, it does not matter whether the statements made by an 
endorser are identical to or different than those made by the 
sponsoring advertiser. Similarly, the Commission proposes a minor 
modification of Example 4 (deleting from the penultimate sentence the 
reference to the views of the sponsoring advertiser) to make it clear 
that the only relevant criterion in determining whether a statement is 
an endorsement is whether consumers believe it reflects the endorser's 
views.
    Example 1 to Section 255.0 currently provides one example of an 
endorsement and also illustrates the principle that an endorsement may 
not be presented out of context or reworded so as to distort the 
endorser's opinion. The Commission proposes to add a cross-reference to 
Section 255.1(b), which states this principle explicitly.
    The Commission proposes adding a new Example 6 to Section 255.0, to 
illustrate that the determination of whether a speaker's statement is 
an endorsement depends solely on whether consumers believe that it 
represents the endorser's own view. Specifically, the new example 
clarifies that whether the person making the statement is speaking from 
a script, or giving the endorsement in his or her words, is irrelevant 
to the determination.
    The Commission also proposes adding a new Example 7 to Section 
255.0, to illustrate that well-known persons can appear in advertising 
without being deemed endorsers.

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 may not convey any representation that 
would be deceptive if made directly by the advertiser). The Commission 
proposes one significant revision to this section of the Guides, the 
addition of a new Section 255.1(d) explicitly recognizing two 
principles that the Commission's law enforcement activities have 
already made clear. The first is 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 second is that endorsers may also 
be subject to liability for their statements. The Commission has 
brought law enforcement actions against both expert endorsers and well-
known personalities (i.e., celebrities) who have acted as endorsers. 
E.g., FTC v. National Urological Group, Inc., No. 04-CV-3294-CAP, 2008 
U.S. Dist. LEXIS 44145, at *24-25 (N.D. Ga. June 4, 2008) (order 
granting FTC's motion for summary judgment finds expert liable for 
deceptive endorsement); Snore Formula, Inc., 136 F.T.C. 214 (2003) 
(consent order); James L. McElhaney, M.D, 116 F.T.C. 1137 (1993) 
(consent order); Leroy Gordon Cooper, Jr., 94 F.T.C. 674 (1979) 
(consent order); and Cooga Mooga, Inc., 92 F.T.C. 310 (1978) (consent 
order). Two new examples illustrate situations in which the Commission 
could impose liability on expert and celebrity endorsers; both of these 
examples note that the advertiser is also liable for misrepresentations 
made through the endorsement. A third new example illustrates the 
potential liability of advertisers who use bloggers to promote their 
products and of the bloggers themselves.
    The Commission also proposes two minor revisions to Section 
255.1(a). First, to make it clear that the Guides cover the 
communication of both express and implied representations, the phrase 
``may not convey any express or implied representation'' is being added 
to the second sentence of that provision (which currently states that 
endorsements may not contain any representations that would be 
deceptive if made directly by the advertiser). Second, an additional 
cross-reference is being added at the end of revised Section 255.1(a). 
Currently, the only cross-reference is to an example in Section 255.3, 
in which an endorsement by an expert testing organization is used

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to illustrate the principle that ``a valid endorsement may constitute 
all or part of an advertiser's substantiation.'' As revised, the cross-
references would refer to Sections 255.2(a) and (b) regarding the 
substantiation of claims conveyed by consumer endorsements, discussed 
below, as well as to Section 255.3.

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. The 
Commission proposes to add a new Section 255.2(a) to articulate several 
fundamental principles that are not expressly set forth in the current 
Guides, to modify the existing Section 255.2(a), and to delete the 
existing Section 255.2(c).

1. New Section 255.2(a)

    The Commission's proposed new Section 255.2(a) would state that an 
advertisement employing endorsements by one or more consumers about the 
performance of an advertised product or service will be interpreted as 
a representation that the product or service is effective for the 
purpose represented in the endorsement. Consumer endorsements convey 
not only that the advertised product or service worked for the 
consumers depicted in the advertisement, but also that it will work for 
others. This is the natural implication of an advertiser's use of a 
consumer endorsement, and this view is supported by the consumer 
research conducted for the Commission. Specifically, in the Endorsement 
Booklet Study, between 50.0% and 75.0% of the respondents who were 
exposed to a promotional booklet with testimonials touting the 
advertised supplement's use for breathing problems, low energy, and 
pain said that the booklet claimed or implied that the product was 
effective for reducing breathing problems, increasing energy levels, 
and relieving chronic or persistent pain. (See Table 2b of the 
Endorsement Booklet Study.)
    New Section 255.2(a) also states that an advertiser who uses 
consumer endorsements must possess and rely upon adequate 
substantiation to support efficacy claims made through endorsements, 
just as the advertiser would be required to do if it had made the 
representation directly.\16\ It also notes that consumer endorsements 
themselves do not constitute competent and reliable scientific 
evidence; anecdotal evidence about the individual experience of 
consumers is not sufficient to substantiate claims requiring scientific 
evidence.\17\ Even if those experiences are genuine, they may be 
attributable to a placebo effect or other factors unrelated to the 
advertised product or service.\18\
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    \16\ New Section 255.2(a) thus elaborates on the general 
principle in current Section 255.1, which states that endorsements 
may not contain representations that would be deceptive if made 
directly by the advertiser.
    An advertiser must have a ``reasonable basis'' for efficacy 
claims. The Commission articulated its policy with respect to 
advertising substantiation in the FTC Policy Statement Regarding 
Advertising Substantiation, 48 Fed. Reg. 10,471 (1984), reprinted in 
Thompson Medical Co., 104 F.T.C. 648, 839 (1984), aff'd, 791 F.2d 
189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987). The 
Commission's determination of what constitutes a reasonable basis 
for objective product claims is determined by weighing a number of 
factors, including: (1) the type and specificity of the claim; (2) 
the type of product; (3) the consequences of a false claim; (4) the 
benefits of a truthful claim; (5) the ease and cost of developing 
substantiation for the claim; and (6) the level of substantiation 
experts in the field believe is reasonable. Thompson Medical, 104 
F.T.C. at 839-40; Pfizer, Inc., 81 F.T.C. 23, 64 (1972).
    \17\ FTC v. QT, Inc., No. 07-1662, 2008 U.S. App. LEXIS 33, at 
*6-7 (7th Cir. Jan. 3, 2008) (testimonials ``are not a form of 
proof''); Removatron Int'l Corp., 111 F.T.C. 206, 302 (1988), aff'd, 
Removatron Int'l Corp. v. FTC, 884 F.2d 1489 (1st Cir. 1989).
    \18\ See FTC v. Pantron I Corp., 33 F.3d 1088 (9th Cir. 1994), 
cert. denied, 514 U.S. 1083 (1995) (consumer satisfaction surveys 
and studies demonstrating the placebo effect are insufficient to 
meet ``competent and reliable scientific evidence'' standard); QT, 
2008 U.S. App. LEXIS 33, at *6-7 (``A person who experiences a 
reduction in pain after donning the bracelet may have enjoyed the 
same reduction without it.'').
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2. Renumbered Section 255.2(b)

    Current Section 255.2(a), which would be renumbered Section 
255.2(b), presently provides that an advertisement employing an 
endorsement reflecting the experience of an individual or a group of 
consumers on a central or key attribute of the product or service will 
be interpreted as representing that the endorser's experience is 
representative of what consumers will generally achieve with the 
advertised product in actual, albeit variable, conditions of use. The 
newly available empirical evidence (as well as the Commission's 
findings in several litigated cases\19\ ) supports the Guides' position 
that consumers interpret advertisements containing endorsements as 
representing that the results achieved by the endorsers are generally 
representative of what new users can expect. In the Endorsement Booklet 
Study, between 41.2% and 70.5% of respondents indicated that the 
dietary supplement in question would reduce breathing problems, 
increase energy levels, and relieve pain in at least half of the people 
who try it. (See Table 3b of the Endorsement Booklet Study.)
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    \19\ Brake Guard Prods., Inc., 125 F.T.C. 138, 244 (1998) 
(testimonials used in advertising for aftermarket braking device 
claimed that reduced stopping distances and wheel lockup ``were 
typically experienced by consumers''); Cliffdale Assocs., Inc., 103 
F.T.C. 110, 173 (1984) (testimonials touting fuel economy benefits 
achieved from automotive engine attachment conveyed that these 
experiences were typical); Porter & Dietsch, Inc., 90 F.T.C. 770, 
872-73 (1977) (testimonials from consumers who had lost substantial 
amounts of weight conveyed the message that extraordinarily large 
weight losses were typical or ordinary), modified sub nom., Porter 
Dietsch, Inc. v. FTC, 605 F.2d 294 (7th Cir. 1979) (sustaining 
Commission's findings that representations made in advertising were 
false, but modifying portions of remedial order).
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    In the Second Endorsement Study, ads featuring individuals who 
claimed certain specifically quantified benefits from having used the 
advertised weight loss program, cholesterol lowering supplement, or 
business opportunity (e.g., ``I am earning an extra $2,200 a month'') 
conveyed to between 31.23% and 57.81% of respondents that at least half 
of new users would achieve results similar to the endorsers featured in 
the advertisements. (See Tables 2a and 5a of the Second Endorsement 
Study).\20\ For example, 32.69% of consumers exposed to an ad in which 
endorsers claimed to have lost between 48 and 72 pounds thought the ad 
conveyed that at least half of new users would lose at least 48 pounds. 
(See Table 2a of the Second Endorsement Study.)
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    \20\ As discussed below, several commenters criticized various 
aspects of the two staff research reports that the Commission placed 
on the public record in January 2007. One asserted that the data 
contained in those reports did not account for ``yeasaying,'' the 
tendency of some consumers to answer questions affirmatively, 
regardless of what an ad actually said. In fact, both surveys did 
have test conditions that accounted for yeasaying and prior beliefs, 
and the results of those conditions were included in the staff's 
reports. However, in the interest of greater clarity, the Commission 
is placing on the public record in connection with the Second 
Endorsement Study new Tables 1a, 2a, 4a, and 5a, which expressly 
account for the responses obtained for these conditions by adjusting 
the data obtained from the other test cells.
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    Nevertheless, the Commission believes that certain advertisements 
employing testimonials may not convey that the endorser's experience is 
representative of what consumers will generally achieve with the 
advertised product or service. For example, if an advertisement for a 
casino features a $100,000 slot machine winner, consumers likely 
understand from the nature of gambling that the winner's experience is 
not generally representative of those who use the casino's slot 
machines. The Commission therefore proposes to qualify the currently 
unequivocal language of renumbered Section 255.2(b) to state that ``an 
advertisement employing an endorsement reflecting the experience of an 
individual or a group of

[[Page 72379]]

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 in actual, albeit variable, conditions of use'' 
(emphasis added).
    As currently written, renumbered Section 255.2(b) also provides 
that in the event an advertiser does not have adequate substantiation 
that the experience described by the endorser is representative of what 
consumers will generally achieve, the advertiser can either: (1) 
clearly and conspicuously disclose what the generally expected 
performance would be in the depicted circumstances, or (2) disclose the 
limited applicability of the endorser's experience to what consumers 
may generally expect to achieve, i.e., that the depicted results are 
not representative. The Commission has long been concerned about 
potential deception arising from the use of the second category of 
disclosures, which are often referred to as ``disclaimers of 
typicality.''
    In its 1975 Federal Register notice promulgating several sections 
of the Guides in final form and republishing several others (including 
this section) for comment, the Commission stated that consumers view 
endorsements about product performance as conveying a typicality claim 
under the depicted circumstances and that if the represented 
performance was not typical, the ad should clearly and conspicuously 
disclose what the typical or ordinary performance would be in the 
depicted circumstances. 40 Fed. Reg. 22146, 22147 (May 21, 1975). Five 
years later, when it adopted current Section 255.2(a), the Commission 
stated that it strongly favored consumer endorsements depicting typical 
experiences but recognized that endorsements depicting non-typical 
experiences might not be deceptive if they were accompanied by adequate 
disclosures. 45 Fed. Reg. 3870, 3871 (Jan. 18, 1980). The Commission 
went on to say that ``[g]enerally, a disclaimer alone probably will not 
be considered sufficient to dispel the representation that the 
experience is typical, but . . . the Commission is not prepared to hold 
that in every instance a bare disclaimer would be inadequate . . . .'' 
Id. Accordingly, although reliance on a disclaimer would not be a per 
se violation of Section 5 of the FTC Act, the net effect of an 
endorsement with a disclaimer would be ``studied to determine if the ad 
has the capacity to deceive.'' Id. However, notwithstanding its concern 
about advertisers attempting to use disclosures to disclaim typicality 
messages conveyed by consumer endorsements, the Commission ultimately 
decided to provide a safe harbor for such disclaimers.
    Since that time, the Commission has brought a number of enforcement 
actions against marketers for deceptive advertising containing consumer 
endorsements. Many of these endorsements have been accompanied by 
statements that purport to inform consumers that the experiences of the 
featured endorsers are not representative of what consumers can expect. 
The disclosures are often buried in fine print footnotes or flashed as 
video superscripts too quickly for consumers to read them. Not only are 
the disclosures far from clear and conspicuous, but usually they merely 
say ``results not typical'' or ``results may vary'' or similar 
statements that do little to inform consumers how rare or extreme the 
featured results are.
    The results of the staff's Endorsement Booklet Study and the Second 
Endorsement Study further confirm that the concerns expressed by the 
Commission in 1980 about advertisers attempting to use disclosures to 
disclaim typicality messages conveyed by consumer endorsements were 
well-founded. In the Endorsement Booklet Study, despite the presence of 
strongly worded, highly prominent disclaimers of typicality, between 
44.1% and 70.5% of respondents indicated that the dietary supplement in 
question would reduce breathing problems, increase energy levels, and 
relieve pain in at least half of the people who try it. (See Table 3b 
of the Endorsement Booklet Study).
    In the Second Endorsement Study, consumer testimonials communicated 
to a substantial number of respondents that the results claimed by the 
testimonialists were generally representative of the results that other 
consumers could expect. Even with the disclosures ``Results not 
typical'' and ``These testimonials are based on the experiences of a 
few people. You are not likely to have similar results,'' between 
22.58% and 50.75% of respondents thought that at least half of new 
users would achieve results similar to those experienced by the 
endorsers featured in the advertisements. (See Tables 2 and 5 of the 
Second Endorsement Study.)\21\
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    \21\ The 22.58% figure is the percentage of respondents who, 
after seeing testimonialists tout 48-72 pound losses in an ad with 
the ``Experiences of a few'' disclaimer, said that at least half of 
new users would lose at least 48 pounds. (See Table 2.) The 50.75% 
figure is the percentage who, after seeing testimonialists say their 
cholesterol dropped 30-90 points, said that at least half of new 
users of the dietary supplement would experience drops of at least 
30 points, despite a ``Results not typical'' disclaimer. (See Table 
5.) Subtracting from these figures the results of their respective 
``no numbers'' conditions (3.13% and 0%)--in which consumers saw ads 
featuring multiple testimonials that touted the product but did not 
provide any numerical statement of the results achieved by the 
testimonialists--yields adjusted figures of 19.45% and 50.75%. As 
noted below, these ``no numbers'' conditions capture the effects of 
both yeasaying and prior beliefs.
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    By contrast, the disclosure of actual expected results 
significantly reduced the communication that the experiences depicted 
are generally representative. (See Table 2 of the Second Endorsement 
Study.) This was particularly true when there was a large difference 
between the amounts claimed by the testimonialists and the disclosed 
actual expected results. Of the consumers exposed to an ad in which 
endorsers claimed to have lost between 48 and 72 pounds--but which 
clearly disclosed that the average user loses 10 pounds--only 3.23% 
thought the ad conveyed that at least half of new users would lose at 
least 48 pounds. This figure is almost identical to the 3.13% who--
after seeing an ad with no numbers--thought that the average user would 
lose at least 48 pounds.
    In light of these studies and its own history of law enforcement 
challenges to misleading testimonials, the Commission asked in January 
2007 for comment on: (1) the potential effects on advertisers and 
consumers if the Guides called for clear and conspicuous disclosure of 
generally expected results whenever the testimonial is not generally 
representative of what consumers can generally achieve with the 
advertised product--i.e., if disclosing the limited applicability of 
the depicted results no longer provided a ``safe harbor'' for the use 
of testimonials relating non-typical experiences; and (2) what 
information, other than what is required to substantiate an efficacy or 
performance claim, would be required for an advertiser to determine 
generally expected results, and how difficult it would be for 
advertisers to make this determination. Most of the comments the 
Commission received focused specifically on these issues.
a. Comments supporting revision of the Guides' provisions concerning 
the disclaimer of typicality
    Several comments stated that advertisers should not be able to use 
nonrepresentative testimonials and merely accompany them with 
disclaimers stating that those results were not typical.\22\ One said 
that the

[[Page 72380]]

current Guides invite weight-loss testimonials that advertisers know to 
be false and deceptive, simply by pairing the claim with a ``results 
not typical'' disclaimer.\23\
---------------------------------------------------------------------------

    \22\ Calkins, at 1; CBBB, at 2-3; Adams, at 1.
    \23\ Calkins, at 1.
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    Two other commenters stated that the Guides should require that 
endorsements reflect typical consumer experience.\24\ One of them 
opined that even requiring that atypical testimonials include 
disclosure of typical results would not eliminate deception.\25\ The 
other stated that if the Guides do continue to permit the use of 
nonrepresentative testimonials, the disclaimer of typicality should 
appear through the entire testimonial and be accompanied by disclosure 
of typical results.\26\ Another commenter stated that consumer 
testimonials should be accompanied by a clear and conspicuous 
disclosure describing the typical results obtained, or at least that 
the Guides should ensure that the ``results not typical'' disclosure 
actually changes the net impression of the advertisement.\27\
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    \24\ NACAA, at 2; Attorneys General, at 3.
    \25\ Attorneys General, at 3.
    \26\ NACAA, at 2.
    \27\ CBBB, at 3 (noting that the BBBs receive thousands of 
complaints against companies that rely heavily on the use of 
nonrepresentative consumer testimonials, and that, in the BBB's 
experience, consumers frequently believe they will achieve similar 
results despite the presence of ``results not typical'' 
disclaimers).
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b. Comments opposing revision of the Guide provisions concerning the 
disclaimer of typicality
    Other commenters stated that the Guides should continue to allow 
nonrepresentative testimonials to be accompanied by disclaimers of 
typicality, and should not require disclosure of generally expected 
results. Virtually all of the comments urging the Commission to retain 
Section 255.2(a) of the Guides in its current form made one or more of 
the following arguments:
i. ``Aspirational'' testimonials serve an important purpose, and both 
advertisers and consumers would be adversely affected if disclosure of 
generally expected results were required.
    (a) ``Aspirational'' testimonials motivate consumers without 
misleading them.
    Several of the commenters asserted that in the weight-loss field, 
``aspirational'' or ``inspirational'' testimonials that truthfully 
relate the experiences of consumers who have successfully lost weight 
using the advertised product or program are important advertising 
tools.\28\ Even though those testimonials might not reflect what 
consumers typically experience with that particular product or program, 
they remind customers of their own fitness goals and motivate them to 
try to achieve similar results by starting responsible weight loss 
programs.\29\
---------------------------------------------------------------------------

    \28\ Product Partners, at 2-3, 5; Jenny Craig, at 2; CORE, at 3; 
NutriSystem, at 26.
    \29\ Product Partners, at 2, 5; Jenny Craig, at 2; CORE, at 3.
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    According to two commenters who stressed the importance of 
``aspirational'' testimonials in weight-loss advertising, consumers 
understand that the weight loss achieved by the testimonialist does not 
necessarily reflect the experience they will have using the product or 
program.\30\ As one put it, the ``variables that affect the rate and 
extent to which a person can lose weight are so varied and well-known 
to the viewer . . . that it is difficult to believe that consumers are 
not capable of understanding that their result may be different from 
those that are shown in advertising depending on multiple factors, but 
that success nonetheless, is absolutely achievable.''\31\ Thus, a 150-
pound person who sees a testimonial from a woman who lost 100 pounds 
knows she will not lose 100 pounds but that she could lose 20-30 
pounds; conversely, a 400 pound person who sees the same ad ``could 
equally see that there is hope for them to lose over 200 pounds.''\32\
---------------------------------------------------------------------------

    \30\ Product Partners, at 3; Jenny Craig, at 2. However, neither 
Product Partners nor Jenny Craig provided quantitative evidence 
supporting their view that consumers are not misled by 
``aspirational'' testimonials.
    \31\ Product Partners, at 3.
    \32\ Id. at 3.
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    The Commission agrees that ``aspirational'' testimonials are 
commonly used in the marketing of weight-loss products and programs, 
and that they may induce consumers to purchase or enroll in these 
products or programs.\33\ However, the fact that a testimonial is 
truthful or is being used to promote a product or program that 
advocates responsible lifestyle changes (i.e., reduced caloric intake 
and increased caloric expenditure) does not necessarily prevent it from 
conveying a misleading message to consumers. If consumers are deciding 
to purchase a product or enroll in a program based on advertising that 
conveys to them that they are likely to achieve results similar to the 
testimonialists, and the advertiser lacks substantiation for that 
representation, then those consumers are being misled.
---------------------------------------------------------------------------

    \33\ For a discussion of consumer testimonials and disclaimers 
in the context of weight-loss advertising, see Weight-Loss 
Advertising: An Analysis of Current Trends, A Federal Trade 
Commission Staff Report (Sept. 2002) (available at www.ftc.gov/bcp/reports/weightloss.pdf). The staff's report highlights the troubling 
use of consumer testimonials claiming extreme weight loss in weight-
loss advertising, a particular concern given the apparent prevalence 
of weight-loss fraud.
    In October 2007, the Commission issued a report on consumer 
fraud in the United States. The survey found that more consumers 
were victims of fraudulent weight-loss products than of any of the 
other specific frauds covered by the survey. For purposes of the 
study, weight-loss products included nonprescription drugs, dietary 
supplements, skin patches, creams, wraps, or earrings that were 
promoted as making it easy for consumers to lose a substantial 
amount of weight or allowing them to lose weight without diet or 
exercise. Federal Trade Commission, Consumer Fraud in the United 
States: The Second FTC Survey at 15, S-1 (Oct. 2007 staff report) 
(available at www.ftc.gov/opa/2007/10/fraud.pdf).
---------------------------------------------------------------------------

    Moreover, as the Commission has stated, ``An interpretation [of an 
advertisement] may be reasonable even though it is not shared by a 
majority of consumers in the relevant class, or by particularly 
sophisticated consumers. A material practice that misleads a 
significant minority of reasonable consumers is deceptive.''\34\ As 
with all advertising, the fundamental question to be answered is 
whether, taken in its entirety,\35\ an advertisement that uses 
testimonials is likely to convey to reasonable consumers a message that 
is false or for which the advertiser does not have substantiation. The 
substantiation requirements for advertisements that convey performance 
claims are the same, whether the claim is made with or without the use 
of testimonials. Advertisers cannot use testimonials to convey claims 
they could not make through other means.
---------------------------------------------------------------------------

    \34\ FTC Policy Statement on Deception, appended to Cliffdale 
Associates, Inc., 103 F.T.C. 110, 174, 177 n.20 (1984) (citation 
omitted) (hereafter ``Deception Policy Statement'').
    \35\ ``[I]n advertising the Commission will examine `the entire 
mosaic, rather than each tile separately.''' Id. at 179 (quoting FTC 
v. Sterling Drug, 317 F.2d 669, 674 (2d Cir. 1963)).
---------------------------------------------------------------------------

    (b) Requiring disclosure of the results consumers generally achieve 
with the advertised product or program would impose a substantial 
burden on advertisers.
    Several commenters stated that determining generally representative 
results would be very difficult for certain advertisers. According to 
some commenters, in the weight-loss field, for example, determining 
generally representative results would necessitate computations across 
a diverse customer base (men, women, young, old, obese, and non-obese), 
a difficult and costly endeavor that would require ongoing monitoring 
of customers' progress and

[[Page 72381]]

frequent updating of calculations.\36\ One commenter stated that it was 
impossible for an advertiser whose weight-loss program promoted both 
exercise and diet to know what is typical.\37\ Another stated that when 
the effectiveness of the products depends on variables associated with 
individual use, typicality either cannot be shown or shown only with 
great difficulty so that advertisers in these businesses would not be 
able to use testimonials, even though advertisers in other fields would 
be able to continue doing so.\38\
---------------------------------------------------------------------------

    \36\ NutriSystem, at 26-27; CORE, at 3 (noting that there is no 
``average'' consumer); Satz at 2, 11; Kelley Drye, at 17 (practical 
result of such a requirement would be de facto prohibition on use of 
testimonials).
    \37\ Product Partners, at 5.
    \38\ ERA/CRN, at 10 and 12 (marketers of dietary supplements 
would face substantial hurdles in substantiating typicality of 
health or safety claims made by consumer testimonials).
---------------------------------------------------------------------------

    One commenter suggested that a disclosure requirement would 
incorrectly assume that all types of claims can be measured by 
generally expected results, even though preference claims or personal 
experience claims for certain products--such as video games, movies, 
and restaurants--are not susceptible to such measurements.\39\ If the 
Guides called for non-representative testimonials to be accompanied by 
disclosure of generally expected results, these advertisers would have 
to have studies showing the likeability of their products before they 
could use endorsements; as a result, many would stop using 
testimonials.\40\ This commenter also opined that such a change would 
mean that advertisements using testimonials would be subject to 
stricter substantiation requirements than advertisements making the 
same claim without the use of testimonials.\41\
---------------------------------------------------------------------------

    \39\ AAAA/AAF, at 11.
    \40\ Id. at 11-12 (also noting that new requirements might cause 
other advertisers to stop using testimonials, too). See also ANA, at 
10 (advertisers would not be able to use testimonials to make claims 
about products that rely on subjective variables, because they would 
not be able to adequately determine typical experience); AHPA, at 
10-11 (some advertisers might cease using endorsements if unable or 
unwilling to afford the cost of measuring generally expected 
performance).
    \41\ AAF/AAAA, at 12.
---------------------------------------------------------------------------

    Several commenters also suggested that requiring disclosure of 
generally expected results could create competitive disadvantages for 
certain businesses, thereby upsetting the level playing field that 
exists under the current Guides for, among others, new businesses 
attempting to compete with established enterprises.\42\ Others stated 
that the burden of any new disclosure requirements would, ironically, 
fall on marketers of responsible weight loss programs (those complying 
with government recommendations of decreased caloric intake and 
increased physical activity) because they would expend resources to 
comply with the requirements, while marketers of pills and supplements 
with no scientific support would ignore those requirements or 
manipulate their data to produce fictitious averages.\43\
---------------------------------------------------------------------------

    \42\ ERA/CRN, at 9-12 (new advertisers would be placed on 
unequal footing with established competitors because they would have 
to establish baseline results before they would be able to determine 
typicality; also, advertisers who have evidence of a product's 
efficacy but not of typicality would not be able to use 
testimonials, even though a competitor who has typicality 
substantiation could). See also AHPA, at 10-11 (requiring disclosure 
of generally expected results would increase costs for advertisers 
who do not already have substantiation for claims made in 
endorsements; as a result, it might reduce use of endorsements if 
advertisers are unwilling or unable to pay the cost of measuring 
generally expected results).
    \43\ NutriSystem, at 27-28; Freedomworks, at 2-3 (``one-size-
fits-all disclaimer'' would create significant burdens for 
legitimate advertisers who would abide by the Guides, while 
unscrupulous operators would disregard them); Satz, at 10 
(advertisers who are already making unsubstantiated weight-loss 
claims will not comply with Guide provisions calling for disclosure 
of additional information).
---------------------------------------------------------------------------

    At the outset, the Commission notes that such a change in the 
Guides would not mean that advertising using testimonials would be 
subject to stricter legal standards than other advertising--to the 
contrary, it would merely eliminate a safe harbor that has allowed 
advertisers to avoid the general requirement that they be able to 
substantiate all material claims conveyed by their advertising to 
reasonable consumers.
    The Commission does recognize that a revision of renumbered Section 
255.2(b) calling for non-typical testimonials to be accompanied by 
disclosure of the results consumers generally achieve with the 
advertised product would increase costs for those advertisers who have 
not previously tracked consumers' experiences with their products, and 
could present an impediment to the use of such testimonials by certain 
advertisers. The commenters, however, may be overestimating those 
costs. In the vast majority of cases--particularly those for legitimate 
products and programs whose efficacy has already been demonstrated by 
competent and reliable scientific evidence--that information is likely 
to be present.
    The Commission also believes that, for most products, it is 
possible to devise a methodologically sound means of determining the 
generally expected results.\44\ Moreover, other alternatives may be 
available. For example, an advertiser may use testimonials from a 
defined subset of users for which it can determine the typical 
results.\45\ Or, given the Commission's proposal to revise the Guides 
so that they no longer provide unequivocally that testimonials will 
convey typicality claims, the advertiser could write its ad in such a 
way that consumers would not take away the message that they can expect 
to achieve the same results as the testimonialist.\46\
---------------------------------------------------------------------------

    \44\ As noted below, the Commission is specifically seeking 
comment on whether there are product categories for which such a 
change in the Guides would prevent advertisers from using 
endorsements in advertising even though the advertiser believes that 
the endorsers' experiences are or likely are generally 
representative of what consumers can expect to achieve with the 
product.
    \45\ For example, an advertisement depicting the atypical 
results of women who used a program for a year could clearly and 
conspicuously disclose the average results of women who remained in 
the program for a year.
    \46\ The Commission is proposing to include such an example in 
the revised Guides. See Section 255.2, Example 4, below.
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    Moreover, the Commission does not assume that the use of 
testimonials necessarily gives rise to typicality messages, and thus to 
a need for disclosures, regardless of the nature of the product. 
Advertisements that use testimonials to promote products for which 
consumers' reactions are inherently subjective and their endorsements 
thus merely statements of personal opinion (e.g., restaurants or games) 
are less likely to convey typicality messages than ads using 
testimonials to make objective, quantifiable claims (e.g., pounds lost, 
money saved).\47\ Indeed, Section 255.2(a) of the Guides speaks of 
``what consumers will generally achieve with the advertised product in 
actual, albeit variable, conditions of use.''\48\ The concept of using 
a product to achieve certain results implies a factual scenario very 
different from testimonials expressing opinions about a particular book 
or movie. Accordingly, unless an advertisement made a claim such as 
``preferred 2-1 over the best-selling video game,'' the advertiser 
would not

[[Page 72382]]

need a likeability study before using endorsements in which consumers 
stated how much they enjoyed the game.\49\
---------------------------------------------------------------------------

    \47\ See Deception Policy Statement, 103 F.T.C. at 181 
(``Certain practices . . . are unlikely to deceive consumers acting 
reasonably. Thus, the Commission generally will not bring 
advertising cases based on subjective claims (taste, feel, 
appearance, smell) or on correctly stated opinion claims if 
consumers understand the source and limitations of the opinion.'') 
(footnote omitted).
    \48\ When the Commission first proposed Section 255.2 in 1975, 
it noted that Section 255.2(a) ``recites the general principle that 
endorsements reflecting the experience of an individual consumer 
will be interpreted as representing the typical performance of the 
product under like circumstances.'' 40 Fed. Reg. at 22147 (emphasis 
added).
    \49\ If there were a financial or other relationship between the 
advertiser and the endorser that would affect the credibility of the 
endorsement, that relationship would have to be disclosed under 
Section 255.5 of the Guides.
---------------------------------------------------------------------------

    Although requiring disclosure of generally expected results might 
impede the ability of newly established companies to use testimonials, 
such an outcome would not necessarily be inappropriate. Businesses are 
entitled to compete based on truthful, nonmisleading advertising 
claims, but they are not entitled to use techniques that mislead 
consumers. If a company does not have adequate substantiation for an ad 
that said ``you will lose 20 pounds in 10 weeks using our product,'' it 
cannot have a testimonialist convey the same message in an 
advertisement that merely includes a small disclaimer that says 
``results not typical.'' Until such time as it has an adequate data to 
determine what results consumers can expect from its product, a company 
might have to tout other aspects of its program (e.g., that it provides 
easy-to-follow menus with inexpensive, low-calorie, pre-made food). 
Moreover, it is likely that in most instances, the evidence 
substantiating the efficacy claim will provide sufficiently meaningful 
information to establish the parameters of the generally expected 
results. The Commission is also mindful that marketers of unproven, 
``miracle in a bottle'' weight-loss products might either ignore 
revised Guides or fabricate exaggerated data for use in disclosures 
accompanying their testimonials, thereby putting marketers of 
legitimate weight-loss programs at a competitive disadvantage. 
Advertising by these marketers would likely attract the Commission's 
attention, however, prompting enforcement actions to enjoin these 
practices. Moreover, as a matter of policy, this argument could not 
justify allowing a safe harbor for claims the Commission had determined 
were deceptive. If consumers are being misled by the widespread use of 
inadequately qualified, non-typical testimonials, the fact that some 
scofflaws will continue trying to defraud consumers does not outweigh 
the considerations in favor of revising the Guides.
    (c) Even if advertisers could determine the results consumers 
generally achieve with the advertised product or program, disclosing 
those results would confuse consumers.
    Several commenters asserted that even if advertisers of weight-loss 
programs attempted to comply with a new requirement to disclose 
generally expected results, disclosure of the resulting ``average'' 
weight loss results would not only be confusing to consumers--because 
of the amount of information advertisers would have to provide in order 
to enable them to interpret those averages--but could also discourage 
them from even starting a weight-loss program that might be the first 
step to a healthier lifestyle.\50\
---------------------------------------------------------------------------

    \50\ CORE, at 3-4 (averages are inherently misleading; consumers 
may be discouraged from doing anything about their weight); Satz, at 
10-11 (averages would be misleading and discouraging); Product 
Partners, at 4 (a consumer who needed to lose 75 pounds might not 
bother starting a weight-loss program if ads for that program 
disclosed that the average consumer lost only 30 pounds). See also 
NutriSystem, at 26-27 (averages would not be useful because 
consumers' needs and objectives are so disparate); CORE, at 3 
(companies would have to interpret so much data to accurately 
interpret averages that FTC's efforts to make claims easy to 
understand would be undermined); Jenny Craig, at 2 (consumers will 
be deluged with confusing data of limited utility).
---------------------------------------------------------------------------

    The commenters did not submit any empirical evidence supporting 
their contentions that disclosure of generally expected results would 
be confusing to consumers, and would even deter them from starting a 
new weight loss program. Absent such evidence, the Commission doubts 
that disclosure of average weight-loss results--whether presented 
separately by gender or simply as a single figure\51\--would be less 
confusing to consumers than the information they currently receive: 
data from statistical outliers with no indication as to what most 
consumers achieve.\52\ It may also be that insofar as the current 
Guides provide no incentive for a company to track and analyze 
consumers' success (or lack thereof) with its product or program, they 
actually decrease the amount of useful information that could be made 
available to consumers.
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    \51\ For example, a disclosure might state ``the average man 
loses 2 pounds per week on our program; the average woman loses 1 
pound per week'' or ``the average person loses between 1 and 2 
pounds per week.''
    \52\ The Commission notes in this regard that consumers did not 
appear to be confused by disclosure of average weight loss results 
in the Second Endorsement Study.
---------------------------------------------------------------------------

    Turning to the commenters' contention that such a change in the 
Guides would discourage consumers from even attempting to lose weight, 
the Commission notes two points. First, no commenters submitted 
empirical evidence that ``aspirational'' testimonials actually benefit 
consumers. Indeed, it seems just as likely that consumers induced into 
buying a weight-loss product or enrolling in a program based on what 
are, in effect, statistical outliers, may be more easily frustrated by 
their lack of comparable success--and give up sooner--than consumers 
who have realistic expectations based on accurate information. Second, 
although the commenters simply assume that advertising using non-
typical testimonials would not be ``aspirational'' if the ads disclosed 
the generally expected results, there is no apparent reason why 
consumers might not think they can do better than the average. For 
example, an advertisement that features highly successful 
testimonialists but discloses the results consumers generally achieve 
could provide positive motivation to consumers by conveying to them 
that they can expect to lose about 30 pounds on that program over six 
months, but that if they are conscientious and stay on the program 
longer than the average consumer, they might even lose 75 pounds--like 
the testimonialist.
ii. Rather than change the Guides, the FTC should continue bringing law 
enforcement actions to stop deceptive advertising using testimonials. 
Alternatively, the FTC should exempt advertisers of proven weight-loss 
products and programs from having to disclose generally expected 
results when they use nonrepresentative testimonials.
    A number of commenters stated that the Commission has successfully 
used post-market law enforcement actions to address deceptive 
advertising, and should continue to do so, rather than revise the 
Guides to impose disclosure requirements that affect all advertisers 
and may chill dissemination of helpful information.\53\ One 
specifically noted that in the last five years, the FTC has created an 
enforcement climate (including its identification of ``Red Flag'' 
claims and issuance in January 2007 of four cases challenging allegedly 
deceptive weight-loss claims) that should provide a powerful deterrent 
against deceptive weight-loss advertising.\54\ Another urged the

[[Page 72383]]

Commission to continue using its Red Flags guide and other means to 
pursue deceptive weight-loss advertising, rather than change the 
Guides.\55\ One noted that the Commission has filed comments with the 
FDA stressing both the value of commercial speech that gives consumers 
access to useful information and the advantages of the Commission's 
post-market law enforcement approach over the use of pre-market 
regulation of commercial speech.\56\
    Several of these commenters also asserted that there are important 
differences between weight-loss products and programs that are based on 
recognized principles of reduced calorie consumption and increased 
energy expenditure, on the one hand, and unsubstantiated ``miracle in a 
bottle'' products that are not based on science, on the other, and that 
if the Commission does decide to revise Section 255.2(a) 
(notwithstanding their arguments to the contrary), it should 
distinguish between the two.\57\ According to these commenters, weight-
loss programs based on reduced caloric intake and increased energy 
expenditure present no risk to consumers, nor does advertising for 
these programs that contains truthful testimonials.\58\ Accordingly, 
these commenters urge, if the Commission does revise the Guides to 
require disclosure of typical results, it should exempt efficacious 
meal replacement programs that conform to government recommendations 
for responsible weight loss.\59\
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    \53\ Product Partners, at 2; Jenny Craig, at 2-3; ERA/CRN, at 6-
7; AAF/AAAA, at 5-8 (noting also enforcement of the principles 
embodied in the Guides by the States and by private litigants, as 
well as industry self-regulatory programs, and suggesting that 
revision of the Guides would require self-regulatory entities to 
revise their own standards); ANA, at 7 (noting enforcement actions 
by FTC and other authorities challenging deceptive testimonials); 
CORE, at 4-5; Satz, at 8-10. See also Specter, at 2; Freedomworks, 
at 1-3; NutriSystem at 15, 29 (urging Commission not to subject 
marketers of weight-loss products and programs to additional 
disclosure requirements).
    \54\ NutriSystem, at 17-19. The staff's 2003 ``Red Flags'' guide 
identified seven common weight-loss claims made for products 
available over-the-counter (including nonprescription drugs, dietary 
supplements, creams, wraps, devices, and patches) that were 
scientifically infeasible at that time, and that remain 
scientifically infeasible. The guide is an educational brochure 
intended to assist the media in identifying deceptive weight-loss 
claims prior to publication.
    \55\ Jenny Craig, at 2.
    \56\ NutriSystem, at 8-9, 11-16 and Exhibit A.
    \57\ Satz, at 2-3 (the real problem is deceptive testimonials by 
purveyors of fad diet pills and supplements); CORE at 2; 
NutriSystem, at 30-31.
    \58\ CORE, at 4; NutriSystem, at 28-31; Satz, at 9.
    \59\ Satz, at 3; NutriSystem, at 30-31 (FTC should exempt 
advertisers who do not make ``Red Flag'' claims from disclosure 
requirements); Specter, at 2 (if Guides are revised, FTC should 
avoid placing burdensome restrictions on useful products); Satz, at 
12.
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    Contrary to the views expressed by several commenters, revising the 
Guides to state that non-typical testimonials should be accompanied by 
clear and conspicuous disclosure of generally expected results would 
not represent a departure from the agency's traditional use of post-
market law enforcement actions. As noted above, the Guides merely set 
forth the general principles that the Commission will apply in 
examining endorsements within the confines of its traditional Section 5 
authority; they do not provide an independent source of legal 
authority. Thus, even if the Commission were to revise the Guides with 
respect to the use of non-typical testimonials 255.2(a), it would 
continue to enforce Section 5 by means of post-market law enforcement 
actions, with the question in each case being whether a particular 
advertisement conveyed a false or unsubstantiated message to consumers 
in violation of Section 5. Nor is there any reason to expect that the 
Red Flags guides would not continue to be used in evaluating cases for 
investigation and enforcement action.
    Finally, it would not be appropriate to exempt the marketers of 
certain kinds of weight- loss products and programs from Section 
255.2(a) of the Guides. As noted above, the purpose of the Guides is to 
assist businesses in conforming their advertising to the requirements 
of Section 5 of the FTC Act. Consumers can be deceived by an 
advertisement even for a ``legitimate'' weight-loss program, if the ad 
conveys that the testimonialist's experience is representative of what 
consumers can generally expect, and the advertiser cannot substantiate 
that claim.
iii. The Commission's consumer survey evidence does not provide a 
reliable basis for such a change in the Guides.
    A number of commenters asserted that the staff's two consumer 
research reports do not provide a reliable basis for the potential 
revision about which the Commission inquired. Some comments simply 
raised concerns about specific elements of the design or analysis of 
the studies; one provided a report summarizing the proceedings of two 
focus groups it had sponsored; and another included two reports by a 
marketing professor raising a number of issues concerning the studies.
    Specifically, some of the commenters suggested that the design of 
the studies (e.g., testing only four print ads, three of which were for 
dietary supplements or weight-loss programs) and the demographic 
breakdown of the consumers who participated (80% of the respondents in 
the first study were over age 60) was such that their results cannot be 
extrapolated to other media or products.\60\ Others questioned the 
statistical power of the studies, and asked the Commission to submit 
them to outside experts for review to determine whether they have 
utility in the Commission's review of the Guides;\61\ suggested that 
the studies did not discern what the language contained in the ads 
actually conveyed to consumers, but only what consumers remembered 
after having previously read the ads;\62\ or suggested that the claims 
used in both surveys were the kind that the Commission has warned 
consumers to be suspicious about--i.e., touting ``secret ingredients'' 
and promising ``amazing results''--rather than more moderated and 
scientifically supported testimonials, and that somewhat older 
respondents in the Endorsement Booklet Study might not have access to 
information on the Internet that can help consumers in choosing 
healthcare products.\63\
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    \60\ ANA, at 8; AAAA/AAF, at 12-15.
    \61\ AHPA, at 7-10.
    \62\ WLF, at 1, 7.
    \63\ NPA, at 2-3.
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    The Commission acknowledges that the staff's research did not 
attempt to determine what messages consumers take away from 
testimonials and disclaimers in all media and for all products. The 
Commission is not aware of any reason to expect that the results would 
be different with other media or products, however; nor did the 
commenters provide any empirical evidence supporting that 
proposition.\64\ Furthermore, with respect to the statistical power of 
the Endorsement Booklet Study, it is correct that the treatment cells 
used in that study were smaller than those used in the Second 
Endorsement Study. However, the communication of typicality was so high 
in all of the cells in the Endorsement Booklet Study that it is 
reasonable to conclude that the disclaimers were having no practical 
effect. Similarly, although the respondents in the Endorsement Booklet 
Study were somewhat older than the average population (because of the 
intended audience for the advertising at issue in the law enforcement 
investigation that prompted this research), the results are consistent 
with those seen in the Second Endorsement study and thus support those 
conclusions.
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    \64\ Indeed, insofar as consumers are able to control how long 
they view a print ad--unlike, for example, a television commercial--
there is some reason to believe they would be more likely to notice 
and read ``results not typical'' disclaimers in print ads than in 
other media.
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    According to the commenter that sponsored its own focus groups, the 
FTC's studies do not adequately illustrate the complexity of consumer 
perception and understanding of testimonials.\65\ In contrast, this 
commenter stated, the focus groups showed that consumers understand 
that testimonials relate individual experiences of satisfied customers

[[Page 72384]]

(often, ``best case'' results), are inherently skeptical of 
testimonial-based advertising, and do not expect that they would get 
the same results as the testimonialists.\66\ This commenter further 
said that the focus group discussions showed that, given consumers' 
understanding of the limited applicability of testimonials, nothing 
more than a ``results not typical'' disclaimer is needed.\67\
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    \65\ Kelley Drye, at 2, 15-16.
    \66\ Id. at 7-10. A majority of the focus group members also 
expressed the belief that consumer testimonialists generally receive 
some compensation for their endorsement, even though the Guides 
presume otherwise (i.e., the Guides require disclosure of 
compensation when it is paid). Id. at 13-14.
    \67\ Id. at 10-13.
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    The Commission notes that the process by which consumers view (and 
discuss) advertising in a focus group is very different from how they 
ordinarily experience it.\68\ Focus groups are very dependent on group 
dynamics, and one or two participants can dominate the discussion and 
even influence other participants.\69\ Accordingly, the Commission 
believes that general impressions gained from focus group discussions 
are not as informative as a well-designed copy test involving hundreds 
of consumers.
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    \68\ Here, the focus group participants reviewed the ad they 
were given, wrote their reactions, thoughts, and questions down on a 
pad, and then engaged in a lengthy, guided discussion with the focus 
group moderator. StrategyOne, Testimonial Advertising Focus Group 
Research, at 16-17 (attached to Kelley Drye comment).
    \69\ See Thompson Medical Co., Inc., 104 F.T.C. 648, 835 n.82 
(1984), aff'd, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 
1086 (1987) (``Because focus group studies are conducted with very 
few respondents obtained through nonprobability samples, and because 
the interviews are conducted in an unstructured group format, it is 
difficult to draw generalizable conclusions from them. Indeed it is 
not unusual to obtain conflicting results from focus groups.''). See 
also A.B. Blankenship & George Edward Breen, State of the Art 
Marketing Research 227 (1993) (``[F]ocus group findings and ideas 
are not projectable. It would be a mistake to assume that what two 
or three focus groups say is true of all similar people in the 
market. The focus group can guide and `focus' further research, but 
that is all it can do.'').
---------------------------------------------------------------------------

    Finally, the issues raised by marketing professor Thomas Maronick, 
Ph.D., on behalf of ERA/CRN\70\ included: (1) whether the questions 
used to qualify respondents for participation in the study (``screener 
questions'') sensitized them to the issues in the study, thereby 
potentially affecting their responses; (2) whether the age distribution 
of the respondents in the Second Endorsement Study suggests that the 
marketing firm did not follow instructions; (3) whether the 
instructions given to respondents when they were shown the ads used in 
the test caused them to read the ads more carefully than they 
ordinarily would have, thereby increasing the probability of seeing the 
performance claims; (4) that the statistics reported in the studies 
were not offset for ``yeasaying'' (i.e., the tendency for some 
consumers to answer affirmatively to a question even when the ad 
contained no information related to the question); and (5) that if the 
consumers who answered ``about half'' to a question probing the 
communication of typicality were counted as not regarding the 
testimonial claims as typical, there would not be a statistically 
significant difference between the proportion of consumers who took a 
typicality claim and those who did not for the business opportunity and 
dietary supplement advertisements.\71\ Based on these reports, this 
commenter asserted, the studies cannot be relied on to measure what 
messages consumers take from the ads tested or the effectiveness of 
disclosures.\72\
---------------------------------------------------------------------------

    \70\ ERA/CRN, at 14-15 and Appendices 2 and 3 (submitting 
reports of Thomas J. Maronick, Ph.D.). See also Product Partners, at 
5 (agreeing with Dr. Maronick's reports).
    \71\ ERA/CRN, at Attachments 2 and 3.
    \72\ Id. at 14.
---------------------------------------------------------------------------

    With respect to Dr. Maronick's first concern, the Commission notes 
that screening is a universal and necessary part of copy test research, 
because it is important to test consumers who might potentially buy 
such a product or service. Although it might have been desirable to 
have included in the Second Endorsement Study ``clutter'' questions 
asking consumers about product categories other than those that were 
the subject of the advertisements used in the research, there is no 
reason to believe that the short advance warning of the general product 
category led to biased interpretations of testimonial claims.
    Second, the fact that respondents' ages were not evenly distributed 
across the spectrum in the Second Endorsement Study actually shows that 
the individuals conducting the screening were following instructions: 
they had been instructed to obtain specific percentages of respondents 
in the 18-44 years and 45+ groups for each of the product categories in 
the study.\73\
---------------------------------------------------------------------------

    \73\ See Second Endorsement Study, at 4 (separate age and gender 
quotas established for each of the three products).
---------------------------------------------------------------------------

    Third, consumer surveys vary in terms of how many times respondents 
are allowed to view the ad in question, and what the interviewers say 
to them when they show them the ads. Sometimes, consumers are shown an 
ad only once and instructed to look at it as they would in a magazine 
or newspaper. Consumers often see advertisements more than once, 
however, in the real world. In the Second Endorsement Study, consumers 
were told to read the advertisement ``carefully,'' and then, after only 
being asked the name of the product being advertised, were shown the ad 
a second time, told to look at it carefully, and then asked additional 
questions after the ad had been removed from view. To the extent these 
procedures might have caused respondents to study the ad more carefully 
than they ordinarily would, and thus increased the probability of 
taking away messages of efficacy and typicality, they should also have 
increased the probability that respondents would see the tested 
disclaimers. Accordingly, the procedure used in this study actually 
confirms the data showing that most of the disclaimers did not have an 
appreciable impact on consumer take-away.
    Fourth, with respect to ``yeasaying,'' Dr. Maronick counted as 
``yeasayers'' both consumers who replied that the ad said something 
when it did not, and respondents who said the ad did not say something 
when it in fact did. In fact, the latter category does not constitute 
bias, but merely reflects that some respondents did not see a component 
of the ad and accurately reported that fact.\74\
---------------------------------------------------------------------------

    \74\ Dr. Maronick noted that some respondents in the Endorsement 
Booklet Study reported that they had not seen any disclaimers in the 
ads they had viewed, even though those ads had, in fact, contained 
disclaimers. ERA/CRN, at Appendix 2, p. 10. The Commission believes 
that whether or not these respondents subsequently reported having 
seen a disclosure is not relevant to the overall conclusions about 
the ads' communication of efficacy and typicality. The respondents 
viewed the ads in realistic conditions: they were given a booklet 
containing the ads and allowed to take whatever amount of time they 
needed to read it before being asked any questions about the 
messages communicated by the booklet. That they did not report 
seeing disclaimers does not mean they did not actually see them; 
they simply may not have recognized them as such. More important, 
Dr. Maronick's focus on these consumers overlooks the fact that 
despite the presence of highly prominent disclaimers, a sizeable 
percentage of respondents in the Endorsement Booklet Study took away 
messages of efficacy and typicality, and that the results of the 
Endorsement Booklet Study are consistent with those of the larger 
Second Endorsement Study.
---------------------------------------------------------------------------

    In addition, even though the data coming from questions that asked 
for numerical--as opposed to ``yes'' and ``no'' answers--should not 
have been subject to yeasaying, both studies included treatment cells 
that would capture the effects of both yeasaying and prior beliefs. In 
the Endorsement Booklet Study report, Tables 2b and 3b presented data 
that were adjusted using responses provided by a group that saw a 
letter touting the product but not mentioning any specific health 
conditions or diseases; these analyses

[[Page 72385]]

showed that the effects of testimonials on efficacy and typicality 
assessments were strong even after accounting for yeasaying and prior 
beliefs. The Second Endorsement Study included ads featuring multiple 
testimonials that touted the product but did not provide any numerical 
statement of the results that had been achieved by the testimonialist. 
Tables 1, 2, 4, and 5 in the Second Endorsement Study show that the 
communication of efficacy and typicality in these ``no numbers'' test 
conditions was generally quite modest.\75\ However, as noted above, the 
Commission is putting on the public record new Tables 1a, 2a, 4a, and 
5a that present the results adjusted for the responses obtained in 
these ``no numbers'' conditions.
---------------------------------------------------------------------------

    \75\ In the case of the cholesterol and business opportunity ads 
that did not include numbers, the percentage of subjects who 
responded saying at least 30 points or $1,200, was 1.54% and 4.69%, 
respectively, for Communication (Table 4) and 0% and 3.13%, 
respectively for typicality (Table 5). The percentages were somewhat 
higher for the weight-loss ad, ranging from 7.81% for typicality 
(Table 2) to 12.5% for communication (Table 1) at the 24 pound 
level.
---------------------------------------------------------------------------

    Finally, although Dr. Maronick calculates what the results would be 
for communication of typicality in the Second Endorsement Study if 
respondents who answered ``about half'' when asked how many new users 
could expect to achieve the results achieved by the testimonialists 
were tallied with those who said ``some,'' ``very few,'' or ``none,'' 
rather than with those who said ``all'' or ``most,'' he does not offer 
any reason why that approach would be more appropriate than the 
approach taken by the study authors. Indeed, in lay terms, ``about 
half'' is consistent with the concept of generally expected results, 
and thus respondents giving that answer were properly grouped in the 
Second Endorsement Study. However, even adopting Dr. Maronick's 
approach, there can be no question that a substantial percentage of the 
respondents in all three conditions took away the message that new 
users could generally expect to achieve results similar to those 
achieved by the testimonialists.\76\
---------------------------------------------------------------------------

    \76\ See above note 34 and accompanying text (a practice is 
deceptive if a ``significant minority'' of reasonable consumers are 
misled) (quoting Deception Policy Statement).
---------------------------------------------------------------------------

    After reviewing the staff's consumer research reports (including 
the new tables), as well as all of the issues raised by the commenters, 
the Commission believes that the results of the staff's studies do 
provide useful empirical evidence concerning the messages that 
testimonials convey to consumers and the effects of various types of 
disclaimers on the communication of efficacy and typicality claims.\77\
---------------------------------------------------------------------------

    \77\ See Kraft, Inc., 114 F.T.C. 40, 126 n.13 (1991), aff'd, 970 
F.2d 311 (7th Cir. 1992) (agreeing that the design of the 
questionnaire used in the staff's consumer survey ``was not without 
its flaws, and that alternative or additional means could have been 
used'' to minimize yeasaying bias, but that, on balance, the results 
were of some probative value); Telebrands Corp., 140 F.T.C. 278, 324 
n.45 (2005) (``While the copy test may be flawed for its failure to 
excise from the control ad all of the elements that communicated the 
challenged claims, copy tests do not have to be flawless to be 
reasonably reliable and probative.'') (citing Novartis Corp., 127 
F.T.C. 580, 699 n.24 (1999), aff'd, 223 F.3d 783 (D.C. Cir. 2000); 
Stouffer Foods Corp., 118 F.T.C. 746, 807 (1994); Bristol-Myers Co., 
85 F.T.C. 688, 744 (1975)).
---------------------------------------------------------------------------

iv. Disallowing the use of non-typical testimonials accompanied by 
disclaimers of typicality would raise Constitutional issues.
    Eight comments raised First Amendment concerns.\78\ These comments 
argued that the revision about which the Commission inquired in its 
Federal Register Notice would not pass constitutional scrutiny, or at 
least, would raise grave First Amendment concerns.
---------------------------------------------------------------------------

    \78\ WLF, NutriSystem, ERA/CRN, and ANA raised substantive 
constitutional objections, with NutriSystem attaching to its comment 
a legal opinion addressing the issue. Three comments cited general 
First Amendment concerns and urged the Commission to use caution in 
any revisions to the Guides. FreedomWorks, at 1-3; Specter, at 1-2; 
AHPA, at 6. One comment noted the constitutional concerns raised by 
another comment, and joined in that comment. Product Partners, at 3 
(citing concerns raised by the joint ERA/CRN comment).
---------------------------------------------------------------------------

    The comments generally did not dispute that the Commission could 
appropriately restrict deceptive testimonials consistent with the First 
Amendment.\79\ But they argued in favor of case-by-case analysis rather 
than broader across-the-board restrictions, and contended that 
consumers are adequately protected from potential deception by the 
current practices of: (1) requiring that the testimonialist's 
experience be truthful and substantiated, and (2) adding a simple 
disclaimer that the stated results are not typical.\80\
---------------------------------------------------------------------------

    \79\ The standard for analyzing First Amendment issues involving 
commercial speech such as advertising was set forth in Central 
Hudson Gas & Elec. Corp v. Public Service Comm'n of New York, 447 
U.S. 557, 566 (1980). Under that standard, the first question is 
whether the speech at issue concerns unlawful activity or is 
misleading. If so, the speech is not entitled to constitutional 
protection and may be freely regulated. If the speech at issue 
concerns lawful activity or is not misleading, the government 
restriction is analyzed under the following test: (1) the government 
must assert a substantial interest in support of the restriction; 
(2) the government must demonstrate that the restriction directly 
advances the asserted government interest; and (3) the restriction 
must not be more extensive than necessary to serve that interest. 
Id.
    The Supreme Court specifically noted in Central Hudson that the 
very nature of commercial speech permits government regulation, even 
though the First Amendment otherwise generally prohibits content-
based regulation:
    First, commercial speakers have extensive knowledge of both the 
market and their products. Thus, they are well situated to evaluate 
the accuracy of their messages and the lawfulness of the underlying 
activity. . . . In addition, commercial speech, the offspring of 
economic self-interest, is a hardy breed of expression that is not 
``particularly susceptible to being crushed by overbroad 
regulation.''
    Id. at 564 n.6 (citation omitted).
    \80\ See, e.g., NutriSystem, at Exhibit A, p. 15; ERA/CRN, at 8; 
ANA, at 10.
---------------------------------------------------------------------------

    Some comments stated that government restrictions on commercial 
speech must not be more restrictive than necessary, and that requiring 
disclosure of generally expected results would go beyond the means 
necessary to achieve the FTC's interest in preventing deception.\81\ 
Others asserted that a revision of the Guides calling for disclosure of 
typical results when testimonials reporting atypical experience are 
used would not advance a substantial government interest.\82\ Some 
argued that such a change in the Guides would prohibit not just false 
or misleading messages but would also chill truthful speech because 
some advertisers might be deterred from using truthful testimonials if 
they could be found liable for violating Section 5 of the FTC Act.\83\
---------------------------------------------------------------------------

    \81\ ERA/CRN at 8-9 (Commission already has all the tools it 
needs to prevent misleading testimonials; less restrictive 
alternative would be for the Commission to clarify what it means by 
``clear and conspicuous disclosures''); ANA, at 10 (change would 
burden advertisers who disseminate truthful and non-misleading 
testimonials, as well as those who transmit misleading information); 
NutriSystem, at Exhibit A, pp. 16-17, 20 (change inquired about in 
the Federal Register notice would be an overly broad and unduly 
burdensome pre-market restriction on commercial speech when applied 
to advertising for the meal replacement sector of the weight loss 
industry). See also Specter, at 1-2 (noting concerns expressed by 
others that disallowance of the disclaimer of typicality could 
``result in an overly broad suppression of speech because narrower 
regulations that achieve the FTC's goals are available''); 
Freedomworks, at 2 (FTC's proposed ``standardized, mandatory 
disclaimer statement'' is broader than necessary to prevent 
deception). But see WLF, at 7 (although the means chosen to regulate 
commercial speech must be narrowly tailored, it need not be the 
least severe means available to achieve the regulatory objective).
    \82\ ANA, at 10 (comprehensive regulation of endorsements that 
already exists means modification of Guides would not directly and 
materially advance a substantial government interest); ERA/CRN, at 8 
(no legitimate government interest in requiring substantiation of 
typicality when the testimonial is truthful, because no risk that 
consumers will be deceived).
    \83\ ERA/CRN, at 7-8 (footnote omitted); ANA, at 10-11.
---------------------------------------------------------------------------

    The Commission agrees that non-deceptive commercial speech is 
entitled to First Amendment protection, as set forth in Central Hudson. 
A revision of the Guides calling for disclosure of generally expected 
results would

[[Page 72386]]

comport with that standard, however, if such disclosure is necessary to 
eliminate a deceptive message of typicality conveyed by the 
advertiser's use of atypical consumer endorsements.\84\
---------------------------------------------------------------------------

    \84\ See WLF, at 9 & n.3 (FTC can insist on use of the most 
effective, reasonable disclaimers, including disclosure of average 
participant in weight loss program, if such a statistic can be 
readily computed).
---------------------------------------------------------------------------

    As noted above, the Commission is proposing to revise renumbered 
Section 255.2(b) to provide that endorsements about product performance 
are likely to convey an implied claim that the stated results are 
typical under the depicted circumstances, thereby revisiting its 1980 
conclusion that such endorsements necessarily convey such a claim. The 
Commission's extensive law enforcement experience with consumer 
testimonials since 1980,\85\ its expertise in ad interpretation, and 
the staff's two consumer research studies would provide an ample basis 
for concluding that consumers are likely to interpret unqualified 
endorsements about product performance as representations of the 
results typically achieved. See generally FTC v. Colgate Palmolive, 380 
U.S. 374, 391-92 (1964); Kraft, Inc. v. FTC, 970 F.2d 311, 319-20 (7th 
Cir. 1992); Thompson Medical Co., Inc. v. F.T.C., 791 F.2d 189, 197 
(D.C. Cir. 1986). Moreover, a representation of typicality is deceptive 
if the results related by the endorser are not what consumers can 
generally expect from use of the product or service, and deceptive 
speech is not protected by the First Amendment.\86\ Indeed, the Supreme 
Court has repeatedly stated that the government can restrict, or even 
ban, such speech. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 
626 (1985).\87\ Thus, the Commission may appropriately restrict the use 
of consumer endorsements that convey the false or unsubstantiated 
message that the results experienced by the testimonialists are typical 
of those consumers can generally expect.
---------------------------------------------------------------------------

    \85\ That experience includes several administrative 
litigations. See note 19, above.
    \86\ Indeed, with one exception, the commenters do not argue 
that consumers are unlikely to take a misleading impression from 
endorsements stating atypical results. Instead, the focus appears to 
be the choice of remedy needed to cure the misleading impression.
    \87\ In Zauderer, the Supreme Court upheld a disciplinary ruling 
against an attorney who had disseminated an advertisement informing 
potential clients that certain cases were handled on a contingent-
fee basis, and that ``[i]f there is no recovery, no legal fees are 
owed by our clients,'' but failing to disclose that those clients 
would, nonetheless, be liable for litigation ``costs.'' The Court 
noted that the State of Ohio had ``not attempted to prevent 
attorneys from conveying information to the public; it has only 
required them to provide somewhat more information than they 
otherwise might be inclined to present.'' 471 U.S. at 650. The Court 
then held that an advertiser's rights were adequately protected as 
long as disclosure requirements were ``reasonably related'' to the 
State's interest in preventing deception. Id. at 651 & n.14.
---------------------------------------------------------------------------

    In such circumstances, providing a safe harbor for testimonials 
that are accompanied by a clear and conspicuous disclosure of the 
results generally achieved by consumers does not offend the First 
Amendment.\88\ Likewise, failure to embrace a blanket safe harbor for 
the use of disclaimers such as ``results not typical'' in the context 
of Commission guidance where the available evidence suggests that such 
disclaimers are ineffective would not raise any significant First 
Amendment issues, particularly when the Guides recognize that not every 
testimonial will convey a typicality claim, and, as discussed below, 
also do not rule out the possibility that a strong disclaimer of 
typicality could be effective in the context of a particular 
advertisement.
---------------------------------------------------------------------------

    \88\ See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 498 
(1996) (``the State may require commercial messages to `appear in 
such a form, or include such additional information, warnings, and 
disclaimers, as are necessary to prevent its being deceptive''') 
(quoting Virginia Bd. of Pharmacy v. Virginia Citizens Consumers 
Council, Inc., 425 U.S. 748, 772 n.24 (1976)).
---------------------------------------------------------------------------

    Even if analyzed under the more rigorous three-part test set forth 
in Central Hudson for restrictions on speech involving lawful activity 
that is not misleading, a revision to the Guides providing a safe 
harbor only for disclosure of ``generally expected results'' when 
advertisers cannot substantiate that consumers can generally expect the 
result achieved by the testimonialist would pass First Amendment 
scrutiny.\89\ First, the Commission's interest in requiring this 
disclosure is to prevent deception. The Court repeatedly has held that 
preventing fraud and deception is a substantial state interest. 
Edenfeld v. Fane, 507 U.S. 761, 769 (1993) (``there is no question that 
[the government's] interest in ensuring the accuracy of commercial 
information is substantial''); Pearson v. Shalala, 164 F.3d 650, 655-56 
(D.C. Cir. 1999).
---------------------------------------------------------------------------

    \89\ It should be reiterated in this regard that the Guides are 
not an independent source of legal authority for the Commission; any 
law enforcement action would be based on a case-specific 
investigation. See Letter from Landis S. Plummer, Acting Secretary, 
to Jonathan W. Emord, Esq., at p. 2 (Apr. 1, 2004) (noting that 
Commission does not pre-review advertising, but might commence 
investigation after an advertisement has been disseminated to 
determine whether specific claims may be false or unsubstantiated) 
(available at www.ftc.gov/os/2004/04/040420healthrulemaking.pdf). 
Even if the FTC eliminated the safe harbor for disclosing the non-
typicality of the endorser's experience, it would have the burden in 
any subsequent law enforcement action of proving that the ad in 
question was deceptive.
---------------------------------------------------------------------------

    Second, disclosure of generally expected results would directly and 
materially advance the government's interest in preventing deception, 
by providing consumers additional factual information about the 
advertised product or service, and allowing them to assess the 
information accurately.\90\ Again, the Commission's established 
expertise in the area of deceptive consumer endorsements and the 
staff's two consumer research studies provide an adequate basis for the 
Commission's decision that inadequately qualified testimonials that 
convey, incorrectly, that the results experienced by the testimonialist 
are typical, are likely to mislead reasonable consumers, and that more 
detailed disclosure reduces the potential for deception. See Florida 
Bar v. Went for It, Inc., 515 U.S. 618, 629 (1995); Zauderer, 471 U.S. 
at 652-53 (citing FTC v. Colgate Palmolive, 380 U.S. 374 (1964)). It 
bears repeating in this context that under Commission law, an 
advertisement can be capable of several reasonable interpretations, and 
if any one of them is misleading, the advertisement is deceptive in 
violation of Section 5. See Deception Policy Statement, 103 F.T.C. at 
178.
---------------------------------------------------------------------------

    \90\ See Pearson v Shalala, 164 F.3d at 656-57 (finding that 
FDA's prohibition of certain health claims ``would appear to advance 
directly its interest in protecting against consumer fraud'' but 
ultimately invalidating regulations because the government failed to 
show the ban on health claims met Central Hudson's ``reasonable 
fit'' requirement).
---------------------------------------------------------------------------

    And third, disclosure of ``generally expected results'' would not 
be more extensive than reasonably necessary to serve the government's 
interest in preventing deception.\91\ The commenters do not contest 
that the Commission can require clear and conspicuous disclaimers to 
eliminate a deceptive impression of typicality. A disclaimer beyond 
``results not typical'' can be justified by the studies that the 
Commission put on the public record in January 2007, which show that 
the simple disclosure is not adequate, while disclosure of average 
results greatly reduces the potential for deception. Moreover, the 
Guides would be calling for more speech, not less: they would not ban 
the use of atypical endorsements or even the use of ``results not 
typical'' disclaimers, but instead would advise advertisers who choose 
to use testimonials that convey a typicality message to include 
additional

[[Page 72387]]

information to prevent a misleading impression. Therefore, there is a 
reasonable fit.\92\
---------------------------------------------------------------------------

    \91\ The First Amendment does not require that the fit be the 
``least restrictive means'' possible. Rather, the fit must be 
reasonable. Board of Trustees of S.U.N.Y. v. Fox, 492 U.S. 469, 480 
(1989). See also WLF, at 7.
    \92\ Some commenters suggest that a more detailed disclosure 
remedy would be overinclusive because not all consumers might be 
misled. Even if true, the restriction would still be sufficiently 
and reasonably tailored. See Florida Bar, 515 U.S. at 555 (rejecting 
argument that restriction against in-person solicitation was 
overinclusive insofar as it banned information even to citizens 
whose injuries were relatively minor or might keep consumers from 
learning about their legal rights at a time when others might be 
contacting them).
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c. Proposed revisions to the Guides' provisions concerning disclaimers 
of typicality
    Based upon the staff's empirical research and its law enforcement 
experience, the Commission believes that disclaimers regarding the 
limited applicability of an endorser's experience to what consumers may 
generally expect to achieve are unlikely to be effective, and therefore 
that the Guides' current safe harbor for such disclaimers should be 
eliminated. Accordingly, and having considered the comments submitted 
in response to the January 2007 Federal Register notice, the Commission 
now proposes to revise the renumbered Section 255.2(b) not only to 
provide that testimonials reflecting consumer experience on a key 
attribute of the product will likely be interpreted as representing 
that the endorser's experience is representative of what consumers will 
generally achieve with the advertised product in actual, albeit 
variable, conditions of use, but also to provide that when testimonials 
do so convey, and the advertiser does not possess adequate 
substantiation for this representation, the advertiser should clearly 
and conspicuously disclose the generally expected performance in the 
depicted circumstances.
    The Commission specifically seeks comment on whether there are 
product categories for which this requirement would prevent advertisers 
from using endorsements even though the advertiser believes that the 
endorsers' experiences are or likely are generally representative. For 
any such product categories, the Commission seeks information 
concerning the costs and benefits to the advertiser, to competition, 
and to consumers of the inability to use such endorsements in 
advertisements, together with any supporting empirical data.
    Finally, as noted above, notwithstanding the results of the staff's 
consumer research, the Commission cannot rule out the possibility that 
a strong disclaimer of typicality could be effective in the context of 
a particular advertisement. Therefore, the Commission also proposes 
adding a footnote to this subsection acknowledging this possibility. 
The footnote also notes that an advertiser employing a strong 
disclaimer will avoid the risk of FTC law enforcement action if it has 
valid empirical testing demonstrating that the net impression of its 
advertisement is non-deceptive. The Commission seeks comment on these 
proposed revisions.

3. Current Section 255.2(c)

    The Commission proposes to eliminate Section 255.2(c) in the 
current Guides, which prohibits efficacy claims in consumer 
endorsements for drugs or devices unless the advertiser has adequate 
scientific substantiation for the claims and the claims are not 
inconsistent with any determination by the Food and Drug Administration 
concerning the drug or device. The Commission believes this section to 
be unnecessary. Revised Sections 255.2(a) and 255.2(b) effectively 
prohibit consumer endorsements for drugs or devices unless the 
advertiser has adequate scientific substantiation for any efficacy 
claims conveyed by the ads.

4. New Examples for Renumbered Section 255.2

    The Commission is also proposing to add five new examples to 
Section 255.2. The first, new Example 1, involving consumer 
endorsements for a baldness treatment, illustrates that testimonials 
can convey an efficacy claim, even though the advertisement in which 
they appear makes no other representations about the product.\93\ The 
example also shows that the advertiser must have substantiation for 
that efficacy claim--in the case of a baldness cure, competent and 
reliable scientific evidence--and that the ad will likely communicate 
that the endorsers' experiences are representative of what new users of 
the product can generally expect. New Example 1 also illustrates that 
an advertiser is unlikely to avoid liability under Section 5 simply by 
attempting to disclaim the typicality representations made through 
consumer endorsements. Specifically, new Example 1 provides that if the 
advertiser does not have adequate substantiation that new users 
typically will experience results similar to the spectacular results 
experienced by the testimonialists, the advertisement will be 
deceptive.
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    \93\ The Commission is proposing to delete the existing Example 
1 in Section 255.2 because it is inconsistent with the Commission's 
proposed revisions to the Guides. The current Examples 2 and 3 would 
be renumbered as Examples 5 and 6 in the revised Guides. The 
Commission is also proposing a minor edit to the last sentence of 
renumbered Example 5: the phrase ``probably represents a promise to 
consumers that this is the typical result'' would be changed to 
``represents that this is the typical result. . .'' The Commission 
believes that the use of poll results conveys a virtually express 
typicality claim.
---------------------------------------------------------------------------

    This example illustrates a long-standing principle that pro forma 
statements or disclaimers may not cure otherwise deceptive 
messages.\94\ The Commission's consumer research also supports this 
proposition. In the Endorsement Booklet Study, ads with prominent, 
strong disclosures still communicated efficacy claims to substantial 
percentages of consumers. Specifically, even with the disclosure used 
in Example 1--``Notice: These testimonials do not prove our product 
works. You should not expect to have similar results.''--between 53.0% 
and 64.7% of the respondents took away the claim that the advertised 
supplement was effective for reducing breathing problems, increasing 
energy levels, and relieving chronic or persistent pain. (See Table 2b 
of the Endorsement Booklet Study.)
---------------------------------------------------------------------------

    \94\ Deception Policy Statement, 103 F.T.C. at 180.
---------------------------------------------------------------------------

    In new Example 2, endorsements are provided by three individuals 
who describe their monthly savings from using the advertised heat pump. 
The ad is interpreted as conveying that such savings represent what 
consumers who buy the company's heat pump can generally expect to 
experience, and, in this example, the advertiser does not have 
substantiation for this representation because fewer than 20% of 
purchasers will save even the smallest amount mentioned in the ad. As 
discussed above, the Commission's consumer research shows that 
consumers interpret testimonials to convey that about half of new 
consumers could expect the claimed results. Nonetheless, the Commission 
is not presently prepared to incorporate a specific numerical standard 
for ``generally representative'' that would apply to all endorsements 
for all products. Instead, new Example 2 clearly indicates that fewer 
than 20% is not generally representative.\95\
---------------------------------------------------------------------------

    \95\ Existing Example 1 appears to interpret ``generally 
representative'' as ``a significant proportion,'' a phrase that is 
ambiguous and arguably could be a small percentage of consumers.
---------------------------------------------------------------------------

    New Example 2 also clearly indicates that disclaimers 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'' will be insufficient to prevent the ad from being deceptive. 
The example states that the ad is less likely to be deceptive if it 
clearly and conspicuously discloses the generally

[[Page 72388]]

expected savings and the advertiser has adequate substantiation for 
that claim. Finally, new Example 2 illustrates several of the multiple 
ways such a disclosure could be phrased.
    New Example 3 illustrates that use of the recommended disclosure 
does not obviate the need to have substantiation for the efficacy 
claims conveyed by the ad. In this example, an ad for a cholesterol-
lowering product features an individual who claims to have reduced his 
serum cholesterol level by 120 points, without any lifestyle changes. A 
well-conducted clinical study shows that the product reduces the 
cholesterol levels of individuals with elevated cholesterol by 15% and 
the advertisement clearly and conspicuously discloses this fact. The 
example makes clear that the advertiser must have adequate 
substantiation that the product is capable of causing the specific 
results claimed by the endorser--a 120-point reduction in serum 
cholesterol without any lifestyle changes. Without that substantiation, 
the ad will be deceptive even with the disclosure of the generally 
expected results.
    In new Example 4, the endorsement itself so clearly describes the 
limited and truly exceptional circumstances under which the endorser 
achieved the results claimed (six months of eating nothing but raw 
vegetables, six hours of vigorous exercise every day, and use of the 
advertised product enabled a 250-pound woman to lose 110 pounds), that 
the ad is unlikely to convey that consumers who use the advertised 
product under ordinary and typical circumstances should generally 
expect to achieve the results achieved by the endorser. Nonetheless, 
the advertiser must have substantiation for any performance claims 
conveyed by the endorsement (e.g., that the advertised product causes 
substantial weight loss). Finally, the example illustrates that a vague 
reference to the extreme circumstances under which the depicted results 
were achieved (``together with diet and exercise'') will likely be 
insufficient to avoid communicating that the depicted results are 
representative.
    New Example 7 illustrates another situation in which consumer 
endorsements will not trigger an obligation for the advertiser to 
determine whether the testimonialist's experience is typical of what 
other consumers can expect. Consumers should realize that the positive 
reviews given by three individuals exiting a movie theater are 
inherently subjective, and that they may not have the same reaction.

D. Section 255.3--Expert Endorsements

    Section 255.3 provides guidance with respect to expert 
endorsements. The Commission is proposing the addition of two new 
examples to this section, the modification of two examples in the 
current Guides, and the deletion of another.\96\
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    \96\ Examples 2 to 4 in the current Guides would be renumbered 
as Examples 3 to 5. Example 5 in the current Guides would be deleted 
because the Commission believes it is anachronistic. Consumers today 
would be unlikely to view the association as an expert in the field 
of nutrition and would likely assume that the endorsement was based 
on compensation, rather than on an evaluation of the product's 
nutritive value.
---------------------------------------------------------------------------

    New Example 2 provides additional illustration of the principle 
that an expert endorser must possess the level of expertise that the ad 
implies he or she has. This illustration notes that if an endorser of a 
hearing aid is simply referred to as ``Doctor'' during the course of an 
advertisement, the likely implication--given the nature of the product 
being advertised--is 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 (in this 
example the endorser has a doctorate in exercise physiology), the 
endorsement is likely deceptive. The example notes that a non-medical 
``doctor'' or a physician without substantial experience in the area of 
hearing can endorse the product, but if the endorser is referred to as 
``doctor,'' the advertisement must make clear the nature and limits of 
the endorser's expertise.
    Example 2 in the current Guides addresses an endorsement by an 
institution whose name implies that the entity is a bona fide 
independent testing organization with appropriate expertise. The 
current example (renumbered Example 3) assumes that such is the case. 
The Commission proposes to add a sentence to clarify that if the 
endorser is not such a bona fide independent testing organization 
(e.g., if it was established and operated by the advertiser), the 
endorsement would be deceptive.
    Example 3 in the current Guides discusses a hospital's endorsement 
of a non-prescription drug. In this example (which would be renumbered 
Example 4), the hospital has selected that particular product over its 
competitors because the manufacturer sells individually packaged doses 
to institutional users, although not to the general public. The 
Commission proposes to supplement the reasons currently given as to why 
this example is deceptive, to include the fact that the basis for the 
hospital's decision is not disclosed to consumers.
    Example 4 in the current Guides suggests that if the president of a 
home cleaning company says that he or she uses a particular brand of 
cleanser in his or her business, this conveys that the individual 
believes that the advertised cleanser is at least as effective as other 
cleansers. The Commission has rewritten this example (renumbered as 
Example 5) to clarify why the endorser is considered an expert, and to 
indicate more clearly that the expert is comparing the cleanser to the 
product's leading competitors that the expert has tried and that the 
basis of this comparison is the cleanser's performance.
    New Example 6 is intended to provide an example of an instance when 
an expert's endorsement is not supported by an adequate exercise of 
expertise. The example posits the situation where a medical doctor 
states that a drug will safely allow consumers to lower their 
cholesterol by 50 points after having reviewed only letters from 
satisfied consumers or the results of a rodent test. The example is 
premised on the assumption that these are not the types of evidence 
that others with the same degree of expertise would consider adequate 
to support conclusions about the product's safety and efficacy.

E. Section 255.4--Endorsements by Organizations

    Section 255.4 provides guidance specific to the use of endorsements 
by organizations. The Commission is not proposing any substantive 
revisions to this section.

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). It also 
indicates that consumers will ordinarily expect that endorsers who are 
well-known personalities (i.e., celebrities) or experts will be 
compensated for their endorsements; therefore, unless the advertiser 
represents that a celebrity or expert endorser has given an endorsement 
without compensation, the advertiser need not disclose the payment of 
compensation to that endorser. The Guides make no distinction between 
an endorser who receives a flat fee for the endorsement and one who 
earns a royalty for each product sold after the

[[Page 72389]]

ad containing the endorsement is disseminated.
    The Commission believes that the requirement that advertisers 
disclose material connections with their endorsers is appropriate and 
should be retained. The Commission proposes to delete the second 
sentence of current Section 255.5, however, because it believes: (1) 
that consumers' expectations about celebrities and about experts may 
not be completely congruent; and (2) that even with respect to 
celebrities, knowledge of the individual's connections with the 
product's marketer may be material to consumers for endorsements made 
in certain nontraditional contexts. In other words, the assumptions 
behind the across-the-board statement in the second sentence of current 
Section 255.5 no longer appear warranted.
    With respect to celebrities, the Commission does not believe that 
it is relevant to consumers how or how much these individuals are 
compensated for their services in the context of conventional 
advertising. Accordingly, Example 2 is being revised to clarify that a 
royalty payment paid to an actor for each product sold need not be 
disclosed.
    Unlike the case with celebrities, however, there could be 
situations in which the nature or amount of an expert's compensation 
might be relevant to consumers. Stated differently, although consumers 
likely expect that an expert will be paid for the time he or she spends 
conducting the analysis necessary to render an expert opinion, there 
could be certain compensation arrangements the knowledge of which would 
affect consumer purchase decisions.
    Several Commission cases have specifically challenged an 
advertiser's failure to disclose an expert endorser's financial 
interest in promoting the sale of the advertised product,\97\ and in 
new Example 4, these kinds of relationships are deemed likely to 
materially affect the weight that consumers give to a physician's 
endorsement of an anti-snoring product. The Commission specifically 
seeks comment on this example: if consumers know that an expert has a 
significant financial interest in sales of the product (such as an 
ownership interest in the company or compensation based on product 
sales), is this information likely to affect their assessments of the 
expert's credibility? Are there also other financial compensation 
arrangements (e.g., lump sum payments over a certain threshold) that 
would also be relevant to consumers' assessment of the expert's 
credibility?
---------------------------------------------------------------------------

    \97\ See, e.g., Med Gen, Inc., 134 F.T.C. 1 (2002) (consent 
agreement) (failing to disclose that an expert was an investor in 
the advertiser and may have a financial interest in promoting the 
sale of the advertised product); Body Wise Int'l, Inc., 120 F.T.C. 
704 (1995) (consent agreement) (failing to disclose that expert 
endorsers are Body Wise distributors and may have a financial 
interest in promoting the sale of the advertised product); Numex 
Corp., 116 F.T.C. 1078 (1993) (consent agreement) (failing to 
disclose that expert endorsers indirectly owned stock in the 
advertiser, that they were to receive payments for each unit of the 
advertised product sold, and that one was an officer and director of 
the advertiser while the other was an officer).
---------------------------------------------------------------------------

    The Commission further notes that even with respect to celebrities, 
distinctions would appear to arise between endorsements made in 
conventional advertising and those made in nontraditional contexts. In 
the latter context, as discussed below, disclosure may be necessary.
    In its January 2007 Regulatory Review notice, the Commission 
referred to a 2003 petition from the consumer advocacy organization 
Commercial Alert, which suggested an exception to the principle that 
consumers will ordinarily expect that endorsers who are well- known 
personalities are compensated for their endorsements: when celebrities 
are paid for touting the performance of brand-name drugs on talk shows 
and other television programs, but do not mention on the air their 
financial ties to the drug's manufacturer. 72 Fed. Reg. at 2217. The 
Commission asked for any extrinsic evidence regarding consumer 
expectations about celebrity endorsements made during interviews, and 
specifically solicited written public comment on whether knowledge that 
a celebrity endorsing a product during such an interview is being paid 
for doing so would affect the weight or credibility consumers give to 
the celebrity's endorsement.
    Two comments specifically addressed these issues, although neither 
submitted any extrinsic evidence about consumers' expectations. One 
noted that when a celebrity speaks favorably about his or her own use 
of a product in an interview, rather than in a conventional ad, it 
seems even more sincere; consequently, if the celebrity's compensation 
is not disclosed, his or her opinion may be taken as even more 
legitimate.\98\
---------------------------------------------------------------------------

    \98\ Adams, at 2.
---------------------------------------------------------------------------

    Another commenter suggested that absent evidence that celebrities 
were frequently endorsing products in contexts other than conventional 
advertising, the FTC should not address this practice in the 
Guides.\99\ This commenter noted that celebrities often appear publicly 
wearing brand name clothing and suggested that it would be extremely 
difficult to distinguish those situations when consumers would expect 
them to be compensated from those when they would not. Furthermore, the 
commenter said, celebrities retain their right under the First 
Amendment to speak on public issues, and many of their public 
statements would likely be noncommercial speech.
---------------------------------------------------------------------------

    \99\ WLF, at 10.
---------------------------------------------------------------------------

    A third comment suggested that the real problem with celebrity 
endorsements is the failure of advertisers to disclose the compensation 
celebrities receive when they endorse prescription drugs.\100\ 
According to this commenter, because the Food and Drug Administration 
assumes that consumers understand celebrities are compensated for drug 
endorsements, the FTC does not challenge these endorsements even though 
prescription drugs--in the view of this commenter--pose more risks to 
consumer health than do dietary supplements.\101\
---------------------------------------------------------------------------

    \100\ NPA, at 4.
    \101\ Id. at 4-5.
---------------------------------------------------------------------------

    The Commission believes that when celebrities are paid 
spokespersons, their endorsements are commercial messages, regardless 
of whether they are disseminated in a traditional advertising context--
i.e., a television commercial or print ad--or elsewhere. In the context 
of an interview, there is no reason for consumers to suspect that the 
endorsement is anything more than a spontaneous mention by a celebrity 
who has no apparent connection with the product's marketer.
    The Commission is proposing a new Example 3 to address this 
issue.\102\ This example makes it clear that consumers would not expect 
a celebrity endorsing a product during a routine interview to be paid 
for doing so, and that knowledge of such a financial interest would 
likely affect the weight or credibility consumers give to the 
celebrity's endorsement. In order to avoid the possibility of 
deception, the celebrity's financial connection to the advertiser 
should be disclosed.
---------------------------------------------------------------------------

    \102\ Example 3 in the current Guides would be renumbered as 
Example 5.
---------------------------------------------------------------------------

    New Example 3 then goes on to distinguish this situation from one 
in which the celebrity appears during the interview wearing clothes 
bearing the insignia of a company with which she has an endorsement 
contract, but does not mention the company or discuss the clothes. No 
disclosure is required because she is not making any representation 
about the clothes. The

[[Page 72390]]

Commission requests comment on both parts of new Example 3.
    The Commission is also proposing the addition of several other new 
examples to Section 255.5. New Example 6 addresses the situation where 
``extras'' who want to work in commercials are recruited to use a 
product in order to give endorsements in exchange for compensation and 
exposure. Viewers would not expect that ``consumer endorsers'' are 
actors who were asked to use the product so that they could appear in 
the commercial or that they were compensated. The example states that 
an advertisement that fails to disclose these facts is deceptive.
    New Examples 7, 8, and 9 apply the general principle that material 
connections between the endorser and the advertiser should be disclosed 
to several new forms of marketing--blogs, discussion boards, and 
``street teams.'' The Commission specifically seeks comment on these 
examples, with particular focus on the expectations held by consumers 
as to the relationships that exist between advertisers and endorsers in 
these new marketing contexts.
    The Commission notes in this regard that WOMMA, a trade association 
whose members are engaged in word-of-mouth and other new types of 
marketing, stated in its comment that the relationship between 
endorsers and advertisers should not be concealed, and that the 
principles of transparency that form the basis of its code of ethics 
require, among other things, that endorsers not misrepresent their 
opinions or their identities (for example, by creating artificial 
entities to endorse products).\103\ The Commission has long believed 
that industry self-regulatory codes play an important role in consumer 
protection, and that the development of ethical standards emphasizing 
transparency for marketers who engage in new forms of marketing is an 
important step to this end.
---------------------------------------------------------------------------

    \103\ WOMMA, at 10.
---------------------------------------------------------------------------

    Finally, the Attorneys General suggested in their comment that the 
Commission add a new provision to the Guides providing that when an 
advertisement relies on a study that was sponsored by the advertiser 
itself, the advertisement should clearly disclose this 
information.\104\ The Attorneys General note that although the Guides 
require the disclosure of material connections between endorsers and 
advertisers, current Example 1 under Section 255.5 specifies that an 
advertiser's payment of expenses to the entity that conducted a touted 
study need not be disclosed in the advertisement. The Attorneys General 
believe that the advertiser's funding of the study would, in fact, be a 
material factor for consumers to consider in deciding how much weight 
or credibility to give the endorsement.\105\
---------------------------------------------------------------------------

    \104\ Attorneys General, at 3.
    \105\ Id.
---------------------------------------------------------------------------

    The Commission is not proposing to change Example 1 substantively 
at this time, but it is proposing certain modifications to provide 
additional factual background and to explain why disclosure of the 
funding for that test would not be required. The Commission seeks 
comment on these modifications, and on the suggestion made by the 
Attorneys General that there is a discrepancy between Section 255.5 of 
the Guides and current Example 1. The Commission also particularly 
seeks extrinsic evidence of consumer understanding concerning this 
issue.

V. PROPOSED REVISED ENDORSEMENT AND TESTIMONIAL GUIDES

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

Sec.  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. Sec.  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 
message (including verbal statements, 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, findings, or experience the message appears to 
reflect will be called the endorser and may be an individual, group, or 
institution.
    (c) The Commission intends to treat endorsements and testimonials 
identically in the 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, 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.
    Example 1: A film critic's review of a movie is excerpted in an 
advertisement. When so used, the review meets the definition of an 
endorsement because it is viewed by readers as a statement of the 
critic's own opinions and not those of the film producer, distributor, 
or exhibitor. Any alteration in or quotation from the text of the 
review that does not fairly reflect its substance would be a violation 
of the standards set by this part because it would distort the 
endorser's opinion. [See Sec.  255.1(b).]
    Example 2: A TV commercial depicts two women in a supermarket 
buying a laundry detergent. The women are not identified outside the 
context of the advertisement. One comments to the other how clean her 
brand makes her family's clothes, and the other then comments that she 
will try it because she has not been fully satisfied with her own 
brand. This obvious fictional dramatization of a real life situation 
would not be an endorsement.
    Example 3: In an advertisement for a pain remedy, an announcer who 
is not familiar to consumers except as a

[[Page 72391]]

spokesman for the advertising drug company praises the drug's ability 
to deliver fast and lasting pain relief. He purports to speak, not on 
the basis of his 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. Even 
though the message is not expressly declared to be the personal opinion 
of the driver, it may nevertheless constitute an endorsement of the 
tires. Many consumers will recognize this individual as being primarily 
a racing driver and not merely a spokesperson or announcer for the 
advertiser. Accordingly, they may well believe the driver would not 
speak for an automotive product unless he actually believed in what he 
was saying and had personal knowledge sufficient to form that belief. 
Hence, they would think that the advertising message reflects the 
driver's personal views. This attribution of the underlying views to 
the driver brings the advertisement within the definition of an 
endorsement for purposes of this part.
    Example 5: A television advertisement for a particular brand of 
golf balls shows a prominent and well-recognized professional golfer 
practicing numerous drives off the tee. This would be an endorsement by 
the golfer even though she makes no verbal statement in the 
advertisement.
    Example 6: An infomercial for a home fitness system is hosted by a 
well-known entertainer. During the infomercial, the entertainer 
demonstrates the machine and states that it is the most effective and 
easy-to-use home exercise machine that she has ever tried. Even if she 
is reading from a script, this statement would be an endorsement, 
because consumers are likely to believe it reflects the entertainer's 
views.
    Example 7: A television advertisement for a housewares store 
features a well-known female comedian and a well-known male baseball 
player engaging in light-hearted banter about products each one intends 
to purchase for the other. The comedian says that she will buy him a 
Brand X, portable, high-definition television so he can finally see the 
strike zone. He says that he will get her a Brand Y juicer so she can 
make juice with all the fruit and vegetables thrown at her during her 
performances. The comedian and baseball player are not likely to be 
deemed endorsers because consumers will likely realize that the 
individuals are not expressing their own views.

Sec.  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 Sec. Sec.  255.2(a) 
and (b) regarding substantiation of representations conveyed by 
consumer endorsements. See also Example 3 to Guide 3 (Sec.  255.3) 
illustrating how a valid endorsement by an expert endorser may 
constitute all or part of an advertiser's substantiation, depending on 
the claim.]
    (b) The endorsement message need not be phrased in the exact words 
of the endorser, unless the advertisement affirmatively so represents. 
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 on 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.
    (c) 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. 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 
Sec.  255.1(b) regarding the ``good reason to believe'' requirement.]
    (d) 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 
[see Sec.  255.5]. Endorsers also may be liable for statements made in 
the course of their endorsements.
    Example 1: A building contractor states in an advertisement that he 
uses the advertiser's 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 specify the paint and to subscribe to the views presented 
previously.
    Example 2: A television advertisement portrays a woman seated at a 
desk on which rest five unmarked computer keyboards. An announcer says, 
``We asked X, an administrative assistant for over ten years, to try 
these five unmarked keyboards and tell us which one she liked best.'' 
The advertisement portrays X typing on each keyboard and then picking 
the advertiser's brand. The announcer asks her why, and X gives her 
reasons. This endorsement would probably not represent that X actually 
uses the advertiser's keyboard at work. In addition, the endorsement 
also may be required to meet the standards of Section 255.3 (Expert 
Endorsements).
    Example 3: An ad for an acne treatment features a dermatologist who 
claims that the product is ``clinically proven'' to work. Before giving 
the endorsement, she 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. The dermatologist is subject to liability for 
the false statements she made in the advertisement. The advertiser is 
also liable for misrepresentations made through the endorsement.
    Example 4: A well-known celebrity appears in an infomercial for an 
oven roasting bag that purportedly cooks every chicken perfectly in 
thirty minutes. During the shooting of the infomercial, the celebrity 
watches five attempts to cook chickens using the bag. In each attempt, 
the chicken is undercooked after thirty minutes and requires sixty 
minutes of cooking time. In the commercial, the celebrity places an 
uncooked chicken in the oven roasting bag and places the bag in one 
oven. He then takes a chicken roasting bag from a second oven, removes 
from the bag what appears to be a perfectly cooked chicken, tastes the 
chicken, and says that if you want perfect chicken every time, in just 
thirty minutes, this is the product you need. A significant percentage 
of consumers are likely to believe the celebrity's statements represent 
his own views even though he is reading from a script. The celebrity is 
subject to liability for his statement

[[Page 72392]]

about the product. The advertiser is also liable for misrepresentations 
made through the endorsement.
    Example 5: A skin care products advertiser participates in a blog 
advertising service. The service matches up advertisers with bloggers 
who will promote the advertiser's products on their personal blogs. The 
advertiser requests that a blogger try a new body lotion and write a 
review of the product on her blog. Although the advertiser does not 
make any specific claims about the lotion's ability to cure skin 
conditions and the blogger does not ask the advertiser whether there is 
substantiation for the claim, in her review the blogger writes that the 
lotion cures eczema and recommends the product to her blog readers who 
suffer from this condition. The advertiser is subject to liability for 
false or unsubstantiated statements made through the blogger's 
endorsement. The blogger also is subject to liability for 
representations made in the course of her endorsement. The blogger is 
also liable if she fails to disclose clearly and conspicuously that she 
is being paid for her services. [See Sec.  255.5.]
    In order to limit its potential liability, the advertiser should 
ensure that the advertising service provides guidance and training to 
its bloggers concerning the need to ensure that statements they make 
are truthful and substantiated. The advertiser should also monitor 
bloggers who are being paid to promote its products and take steps 
necessary to halt the continued publication of deceptive 
representations when they are discovered.

Sec.  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 such 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 also will likely be interpreted as representing 
that the endorser's experience is representative of what consumers will 
generally achieve with the advertised product 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.\106\
---------------------------------------------------------------------------

    \106\ 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.
    Nonetheless, the Commission cannot rule out the possibility that 
a strong disclaimer of typicality could be effective in the context 
of a particular advertisement. 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.
---------------------------------------------------------------------------

    (c) Advertisements presenting endorsements by what are represented, 
directly or by 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.
    Example 1: A brochure 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 ad 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 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 company's heat pump can 
generally expect. The advertiser does not have substantiation for that 
representation because, in fact, less 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 ad is less likely to be deceptive 
if it clearly and conspicuously discloses the generally expected 
savings and the advertiser has 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.''
    Example 3: An advertisement for a cholesterol-lowering product 
features an individual who claims that his serum cholesterol went down 
by 120 points and does not mention 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 
adequate substantiation that the product can produce the specific 
results claimed by the endorser (i.e., a 120-point drop in serum 
cholesterol without any lifestyle changes).
    Example 4: An advertisement for a weight-loss product features a 
formerly obese woman. She says in the ad, ``Every day, I drank 2 
WeightAway shakes, only ate 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 
woman's experience, and such a

[[Page 72393]]

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 she achieved her results, the ad does not 
convey that consumers who weigh substantially less or use WeightAway 
under less extreme circumstances should generally expect to lose 
something in the vicinity of 110 pounds in six months. The advertiser 
must have substantiation, however, for any performance claims conveyed 
by the endorsement (e.g., that WeightAway is an effective weight loss 
product).
    If, in the alternative, the advertisement simply says that the 
endorser lost 110 pounds in six months using WeightAway together with 
diet and exercise, the advertisement would likely convey that her 
results were representative of what consumers can generally expect to 
lose with WeightAway.
    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 actually 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 purports to portray a ``hidden camera'' 
situation in a crowded cafeteria at breakfast time. A spokesperson for 
the advertiser asks a series of actual patrons of the cafeteria for 
their spontaneous, honest opinions of the advertiser's recently 
introduced breakfast cereal. Even though the words ``hidden camera'' 
are not displayed on the screen, and even though none of the actual 
patrons is specifically identified during the advertisement, the net 
impression conveyed to consumers may well be that these are actual 
customers, and not actors. 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 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, that arrangement should be 
clearly and conspicuously disclosed. [See Sec.  255.5.]

Sec.  255.3 Expert endorsements.

    (a) Whenever an advertisement represents, directly 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 he or she is represented as 
possessing with respect to the endorsement.
    (b) Although the expert may, in endorsing a product, take into 
account factors not within his or her expertise (e.g., matters of 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 he or she is expert and which are relevant to an 
ordinary consumer's use of or experience with the product and are 
available to the ordinary consumer. 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, 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 he or she 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 Sec.  255.1(d) 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 he 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 exercise physiology) or a physician without substantial experience 
in the area of hearing can endorse the product, but if the endorser is 
referred to as ``doctor,'' the advertisement must make clear 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 woman who is identified as the president of a 
commercial ``home cleaning service''

[[Page 72394]]

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 to the advertised cleanser, the service must, in fact, have 
such experience, and, on the basis of its expertise, it must have 
determined that the cleaning ability of the endorsed cleanser is at 
least equal (or superior, if such is the net impression conveyed by the 
advertisement) to that of leading competitors' products with which the 
service has had experience and which remain reasonably available to it. 
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 be deceptive assuming that those materials are not 
what others with the same degree of expertise would consider adequate 
to support this conclusion about the product's safety and efficacy.

Sec.  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 
Sec.  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 Sec.  255.1(d) regarding the liability of 
endorsers.]
    Example: A mattress seller 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. (See also Sec.  255.3, Example 5.)

Sec.  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 (i.e., the connection is not reasonably 
expected by the audience), such connection must be fully disclosed. For 
example, when the endorser is neither represented in the advertisement 
as an expert nor is known to a significant portion of the viewing 
public, then the advertiser should clearly and conspicuously disclose 
either the payment or promise of compensation prior to and in exchange 
for the endorsement or the fact that the endorser knew or had reasons 
to know or to believe that if the endorsement favors the advertised 
product some benefit, such as an appearance on TV, would be extended to 
the endorser. Additional guidance concerning endorsements by 
celebrities and experts 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. Where, as here, the design and conduct 
of the research project are controlled by the outside research 
organization, the weight consumers place on the reported results would 
not likely be materially affected by knowing that the advertiser had 
funded the project. Therefore, the advertiser's payment of expenses to 
the research organization need not be disclosed in this advertisement.
    Example 2: A film star endorses a particular food product. The 
endorsement regards only points of taste and individual preference. 
This endorsement must, of course, comply with Sec.  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 her career and during this time she has 
risen to her highest level ever in the rankings. She responds by 
attributing the improvement in her game to the fact that she is seeing 
the ball better than she used to, ever since having laser vision 
correction surgery at a clinic that she identifies by name. She 
continues talking about the ease of the procedure, the kindness of the 
clinic's doctors, her speedy recovery, and how she can now engage in a 
variety of activities without glasses, including driving at night. The 
athlete does not disclose that, even though she does not appear in 
commercials for the clinic, she has a contractual relationship with it, 
and her contract pays her for speaking publicly about her surgery when 
she can do so. Consumers would not expect that a celebrity discussing a 
medical procedure in a television interview to be 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 that the athlete has been engaged as a 
spokesperson for the clinic, this endorsement is likely to be 
deceptive. Furthermore, if consumers are likely to take away from her 
story that her experience was typical of those who undergo the same 
procedure at the clinic, the advertiser must have substantiation for 
that claim.
    Assume that during that same appearance, the tennis player is 
wearing clothes bearing the insignia of an athletic wear company with 
whom she also has an endorsement contract. Although this contract 
requires that she wear the company's clothes not only on the court but 
also in public appearances,

[[Page 72395]]

when possible, she does not mention them or the company during her 
appearance on the show. No disclosure is required because no 
representation is being made about the clothes in this context.
    Example 4: An ad for an anti-snoring product features a physician 
who says that he has seen dozens of products come on the market over 
the years and, in his opinion, this is the best ever. Consumers would 
expect the physician to be reasonably compensated for his appearance in 
the ad. Consumers are unlikely, however, to expect that the physician 
receives a percentage of gross product sales or that he 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.
    Example 5: An actual patron of a restaurant, who is neither known 
to the public nor presented as an expert, is shown seated at the 
counter. He is asked for his ``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 TV promotion of its new soy protein ``steak.'' This 
notification would materially affect the weight or credibility of the 
patron's endorsement, and, therefore, viewers of the advertisement 
should be clearly and conspicuously informed of the circumstances under 
which the endorsement was obtained.
    Assume, in the alternative, that the advertiser had not posted a 
sign on the door of the restaurant, but had informed all interviewed 
customers of the ``hidden camera'' only after interviews were completed 
and the customers had no reason to know or believe that their response 
was being recorded for use in an advertisement. Even if patrons were 
also told that they would be paid for allowing the use of their 
opinions in advertising, these facts need not be disclosed.
    Example 6: An infomercial producer wants to include consumer 
endorsements for an automotive additive product featured in her 
commercial, but because the product has not yet been sold, there are no 
consumer users. The producer's staff reviews the profiles of 
individuals interested in working as ``extras'' in commercials and 
identifies several who are interested in automobiles. The extras are 
asked to use the product for several weeks and then report back to the 
producer. They are told that if they are selected to endorse the 
product in the producer's infomercial, they will receive a small 
payment. Viewers would not expect that these ``consumer endorsers'' are 
actors who were asked to use the product so that they could appear in 
the commercial or that they were compensated. Because the advertisement 
fails to disclose these facts, it is deceptive.
    Example 7: A college student who has earned a reputation as a video 
game expert maintains a personal weblog or ``blog'' where he posts 
entries about his gaming experiences. Readers of his blog frequently 
seek his opinions about video game hardware and software. As it has 
done in the past, the manufacturer of a newly released video game 
system sends the student a free copy of the system and asks him to 
write about it on his blog. He tests the new gaming system and writes a 
favorable review. The readers of his blog are unlikely to expect that 
he has received the video game system free of charge in exchange for 
his review of the product, and given the value of the video game 
system, this fact would likely materially affect the credibility they 
attach to his endorsement. Accordingly, the blogger should clearly and 
conspicuously disclose that he received the gaming system free of 
charge.
    Example 8: An online message board designated for discussions of 
new music download technology is frequented by MP3 player enthusiasts. 
They exchange information about new products, utilities, and the 
functionality of numerous playback devices. Unbeknownst to the message 
board community, an employee of a leading playback device manufacturer 
has been posting messages on the discussion board promoting the 
manufacturer's product. Knowledge of this poster's employment likely 
would affect the weight or credibility of her endorsement. Therefore, 
the poster should clearly and conspicuously disclose her relationship 
to the manufacturer to members and readers of the message board.
    Example 9: A young man signs up to be part of a ``street team'' 
program in which points are awarded each time a team member talks to 
his or her friends about a particular advertiser's products. Team 
members can then exchange their points for prizes, such as concert 
tickets or electronics. These incentives would materially affect the 
weight or credibility of the team member's endorsements. They should be 
clearly and conspicuously disclosed, and the advertiser should take 
steps to ensure that these disclosures are being provided.

VI. INVITATION TO COMMENT

    The Commission invites interested members of the public to submit 
written data, views, facts, and arguments addressing the issues raised 
by this Notice, including the proposed changes to the Guides. Such 
comments must be received by January 30, 2009, and must be filed in 
accordance with the instructions in the ADDRESSES section of this 
document.

List of Subjects in 16 C.F.R. Sec.  255

    Advertising, Trade practices.

    Authority: 15 U.S.C. 41-58.

    By direction of the Commission.

Donald S. Clark
Secretary
[FR Doc. E8-28294 Filed 11-26-08: 8:45 am]
[BILLING CODE: 6750-01-S]