[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Rules and Regulations]
[Pages 48092-48112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14795]


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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: Final rule; adoption of revised Guides.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is 
adopting revised Guides Concerning the Use of Endorsements and 
Testimonials in Advertising (``the Guides''). The revised Guides 
include additional changes not incorporated in the proposed revisions 
published for public comment on July 26, 2022.

DATES: Effective July 26, 2023.

FOR FURTHER INFORMATION CONTACT: Michael Ostheimer (202-326-2699), 
Attorney, Division of Advertising Practices, Bureau of Consumer 
Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 
Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

I. Overview of the Commission's Review of the Guides

    The Commission began a review of the Guides pursuant to the 
agency's ongoing regulatory review of all current rules and guides. In 
February 2020, the Commission published a Federal Register document 
seeking comment on the overall costs, benefits, and regulatory and 
economic impact of the Guides. 85 FR 10104 (Feb. 21, 2020). Given the 
disruption caused by the COVID-19 pandemic, the Commission extended the 
comment period for two months. 85 FR 19709 (Apr. 8, 2020). One hundred 
eight unique substantive comments were filed in response to the 
Commission's February 2020 publication.
    In July 2022, the Commission published a Federal Register document, 
87 FR 44288 (July 26, 2022), that discussed the comments it had 
received in 2020, proposed certain revisions to the Guides, and 
requested comment on those revisions. Thirty unique substantive 
comments were filed.\1\ After

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reviewing those comments, the Commission is now making additional 
changes to the Guides and adopting the resulting revised Guides as 
final.\2\
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    \1\ Comments were submitted by the American Association of 
Advertising Agencies (``AAAA''), the American Academy of Audiology 
(``Academy''), the American Optometric Association (``AOA''), the 
Association of National Advertisers (``ANA''), Bazaarvoice, Inc. 
(``Bazaarvoice''), BBB National Programs, the Center for Data 
Innovation (``CDI''), Common Sense Media (``Common Sense''), the 
Computer & Communications Industry Association (``CCIA''), Consumer 
Reports, Inc. (``Consumer Reports''), James A. Dudukovich, Esq. 
(``Dudukovich''), the Entertainment Software Association (``ESA''), 
Fairplay for Kids (``Fairplay''), Generation Patient, Inc. 
(``Generation Patient''), the Hearing Industries Association 
(``HIA''), the Interactive Advertising Bureau, Inc. (``IAB''), 
InfluenceLogic, LLC (``InfluenceLogic''), the News/Media Alliance 
(``N/MA''), the North American Insulation Manufacturers Association 
(``NAIMA''), the Retail Industry Leaders Association (``RILA''), 
Tripadvisor LLC (``Tripadvisor''), Trustpilot Group plc 
(``Trustpilot''), Truth in Advertising, Inc. (``TINA.org''), and by 
seven individual consumers.
    \2\ The Guides represent administrative interpretations 
concerning the application of section 5 of the FTC Act, 15 U.S.C. 
45, to the use of endorsements and testimonials in advertising. They 
are advisory in nature and intended to give guidance to the public 
in conducting its affairs in conformity with section 5.
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II. Review of Comments on Proposed Revisions to the Guides and 
Additional Changes to Proposed Guides Published in July 2022

    Many of the comments received by the Commission were generally 
supportive of the proposed revisions.\3\ One comment urged the FTC not 
to backtrack in response to complaints from certain commenters.\4\ One 
comment said the Commission should avoid making changes beyond updating 
examples and providing minor clarifications,\5\ but the commenter only 
raised concerns about a few specific issues.\6\ Another comment said 
the Commission should not use the Guides to communicate the policy 
interests of the Commission \7\ and disagreed with many of the proposed 
changes.\8\ Other commenters supported or opposed discrete revisions or 
asked for additional changes, guidance, or enforcement, but did not 
comment upon the proposed changes generally.\9\
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    \3\ AOA at 1, Bazaarvoice at 1, CCIA at 2, 5, Consumer Reports 
at 1, InfluenceLogic at 1, NAIMA at 1, TINA.org at 1.
    \4\ Consumer Reports at 1.
    \5\ ESA at 1.
    \6\ Id. at 2-4.
    \7\ ANA at 2.
    \8\ Id. at 2-18.
    \9\ See, e.g., AAAA, Academy, BBB National Programs, CDI, Common 
Sense, Generation Patient, Tripadvisor, and Trustpilot.
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    What follows is a section-by-section discussion of comments 
received, the Commission's reactions to the comments, and any resulting 
changes to the Guides. The discussion also notes additional changes not 
prompted by the comments but does not flag non-substantive edits 
intended merely to improve the readability of the examples.

A. Section 255.0 Purpose and Definitions

1. The Significance of the Examples
    One commenter assumed significance when an example did not address 
other possible issues that might arise from the facts described.\10\ 
The Commission is adding a statement to Sec.  255.0(a) noting that the 
examples in each section of the Guides apply the principles of that 
section to particular factual scenarios, but they do not address every 
possible issue the facts or principles might implicate.
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    \10\ Dudukovich at 3, 6.
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2. Definitions of ``Endorsements'' and ``Endorsers''
    The Commission proposed revising the definition of an 
``endorsement'' to make clear that tags in social media posts can be 
endorsements. One comment stated addressing tags is beneficial \11\ and 
two comments asserted, correctly, that not all tags are 
endorsements,\12\ with one of them saying the proposed language 
communicates otherwise.\13\ The Commission is therefore revising the 
language of the definition to clarify that tags and certain other types 
of communications ``can be'' endorsements. Another commenter assumed 
the list was exhaustive and if a type of message was not on the list, 
the Commission did not consider it to be an endorsement.\14\ To the 
contrary, the list is illustrative and not exhaustive.
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    \11\ BBB National Programs at 3.
    \12\ ANA at 2, N/MA at 5.
    \13\ ANA at 3.
    \14\ Dudukovich at 2.
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    The Commission proposed revising the definition of an ``endorser'' 
to include what ``appear[s] to be an individual, group, or 
institution.'' Two commenters said the proposed revised definition 
addressing fabricated endorsers is beneficial.\15\ A third commenter 
asked that the Commission make clear using express language or examples 
that the revised definition applies to virtual endorsers or fabricated 
endorsers.\16\ A fourth commenter said the new language was ambiguous 
and, if the Commission simply intended to address virtual influencers, 
then it should use language to specifically address that concept.\17\ 
The Commission does not agree that the new definitional language is 
ambiguous or addresses only virtual influencers; rather, the new 
language is intended to also encompass the writers of fake reviews and 
non-existent entities that purport to give endorsements. The Commission 
is adding a sentence to Example 12 stating that fake positive reviews 
used to promote a product are ``endorsements.'' The Commission is also 
deleting ``or service'' from ``product or service,'' because the term 
``product'' includes a ``service.'' \18\
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    \15\ BBB National Programs at 3, NAIMA at 2.
    \16\ TINA.org at 3.
    \17\ ANA at 3.
    \18\ See Sec.  255.0(d). The Commission is also making similar 
wording changes to Sec. Sec.  255.0(g)(12), 255.2(a), (b), and (d), 
and 255.5.
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2. Definition of ``Product''
    The Commission proposed including a ``brand'' within the definition 
of a ``product.'' Two commenters supported the inclusion of ``brands'' 
\19\ and another commenter raised concerns its inclusion would 
complicate whether a third-party review platform should consider a 
review to be a product review or a service review.\20\ The addition of 
the word ``brand'' to the definition of ``product'' is not intended to 
address or impact how review platforms categorize reviews of brands.
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    \19\ BBB National Programs at 3, NAIMA at 2.
    \20\ Trustpilot at 2.
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3. Definition of ``Clear and Conspicuous''
    The Commission proposed adding a definition of ``clear and 
conspicuous'' to describe the characteristics necessary to make 
disclosures effective. A number of commenters supported the 
definition,\21\ with one of them asking for flexibility in how the 
definition is applied.\22\ One commenter asserted that requiring online 
disclosures to be unavoidable is unlikely to benefit consumers,\23\ and 
another one opposed the definition, arguing for greater 
flexibility.\24\ Some commenters asked for specific guidance about 
compliant or non-compliant disclosures,\25\ and one supported 
addressing general principles in the Guides and providing more detailed 
guidance in staff business guidance.\26\ The Commission is adopting the 
proposed definition, which it believes is both useful and flexible. For 
online disclosures to be effective, they must be unavoidable. The 
Commission further believes its current approach to endorsement-related 
guidance makes sense, with the Guides focused on general principles and 
examples, and the more informal (and more frequently updated) staff 
guidance focused on

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specific questions and issues, such as the use, language, and placement 
of disclosures of material connections on particular platforms.
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    \21\ AOA at 1-2; BBB National Programs at 3-5; Consumer Reports 
at 1, 8; Dudukovich at 3; NAIMA at 2; N/MA at 5-6.
    \22\ N/MA at 5-6.
    \23\ IAB at 3-4.
    \24\ ANA at 4.
    \25\ CDI at 1, Consumer Reports at 8, Dudukovich, ESA at 3, 
Generation Patient, TINA.org, RILA.
    \26\ N/MA at 2.
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4. Examples
    The first example of Sec.  255.0 involves a film producer 
excerpting a film critic's review and placing it in an advertisement. 
One commenter asserted the excerpted statement is not an endorsement 
because there is no material connection between the critic and the 
endorser.\27\ The Commission disagrees: a statement can be an 
endorsement even absent a material connection with the advertiser. The 
Commission is modifying the example to clarify that, while the critic's 
review itself is not an endorsement, the excerpt used in the 
advertisement is an endorsement.
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    \27\ Dudukovich at 3.
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    Example 3 concerns a spokesperson who does not purport to speak on 
the basis of their own opinions and therefore is not considered an 
endorser. Although no commenters addressed this example, the Commission 
is clarifying that the spokesperson also does not purport to speak from 
personal experience.
    Example 4 discusses an ad for automobile tires featuring a well-
known professional automobile racing driver. Given the driver's 
expertise in automotive products, the Commission believes many 
consumers would likely think what the driver says about the positive 
attributes of the tires reflects the driver's personal views based on 
having personal knowledge about the tires. One commenter took issue 
with the Commission's revised language that consumers would likely 
think the driver's statement was based upon personal knowledge or 
experience.\28\ The Commission disagrees with the commenter. Many 
consumers would likely think a professional racer would not speak for a 
product within their field of expertise without actually believing in 
those statements. The Commission is, however, further editing the 
example to make it internally consistent.
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    \28\ ANA at 4.
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    The Commission proposed adding an alternative scenario to Example 5 
involving a golfer who was ``hired'' to post a video to social media of 
them driving a particular brand of golf ball. One commenter said the 
example was helpful in demonstrating that images can be 
endorsements.\29\ Another commenter said not every social media post by 
a golfer showing golf balls is an endorsement and the Commission should 
make it clearer that it is an endorsement because the golfer was 
hired.\30\ Although the Commission believes the example was clear as 
written, it is making it even clearer by describing the social media 
post as a ``paid post.''
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    \29\ BBB National Programs at 5.
    \30\ ANA at 4-5.
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    Example 6 is about an actor who says a home fitness system is ``the 
most effective and easy-to-use home exercise machine that I have ever 
tried.'' One commenter asserted this would only be deceptive if the 
actor had not used the machine.\31\ The example is intended to 
illustrate why this statement is an endorsement and is not intended to 
address all the ways the statement could be deceptive or who could be 
liable for any such deception. The Commission notes, however, there are 
multiple ways in which the statement could be deceptive, including not 
representing the actor's actual opinions or misleading consumers as to 
the machine's effectiveness or ease of use.
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    \31\ Dudukovich at 3.
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    Example 7 illustrates several scenarios in which a consumer's 
expressed views of a brand of dog food would or would not be considered 
an endorsement. In the first scenario, a consumer with no connection to 
the manufacturer decides to buy the product and post about it or review 
it online. The proposed revised example said certain statements by the 
consumer are not an endorsement. One commenter suggested the Commission 
clarify that the consumer purchased the product with the consumer's own 
money, and the example now does so.\32\ Another commenter asked whether 
the consumer's review would be an endorsement if the manufacturer 
highlighted the review on its homepage.\33\ The Commission is adding a 
sentence to the example stating that a featured review would be 
considered an endorsement. The Commission is also deleting a statement 
about whether the consumer's review would otherwise be an endorsement 
if posted on a manufacturer's or retailer's website. Such a conclusion 
may depend on specific legal and factual issues.
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    \32\ Tripadvisor at 6-7.
    \33\ Trustpilot at 4-5.
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    Example 7 includes an alternative scenario in which the consumer 
participates in a marketing program in which participants agree to 
periodically receive free products from various manufacturers and can 
write reviews if they want to do so. One commenter supported the 
example,\34\ and two others questioned whether the reviews are 
endorsements given that they are entirely optional.\35\ To clarify this 
issue, the Commission is making two changes. First, it is modifying the 
example to state the participants had agreed to write reviews of the 
free products and the reviews were therefore endorsements. Second, the 
Commission is adding a second alternative scenario in which an 
influencer receives a valuable, unsolicited product and is asked, but 
not required, to endorse the product. The Commission believes any 
resulting posts would be endorsements even though the influencer could 
have chosen not to endorse the product.
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    \34\ Consumer Reports at 8.
    \35\ ANA at 5, Dudukovich at 4.
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    One commenter indicated support for proposed new Examples 8 through 
11.\36\
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    \36\ Consumer Reports at 8.
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    Proposed Example 8 explains a video game influencer who is paid to 
play and live stream a game is implicitly endorsing the game by 
appearing to enjoy playing it. One commenter could not understand why 
the player's enjoyment is relevant.\37\ The Commission is modifying the 
example to clarify that the player's apparent enjoyment is implicitly a 
recommendation.
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    \37\ ANA at 5.
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    To illustrate disclosures that are not clear and conspicuous, the 
Commission proposed adding Example 9, which contains several 
paragraphs. Paragraph (ii) involves an influencer disclosing their 
connection to a manufacturer in social media posts written such that 
consumers have to click on a link labeled ``more'' in order to see the 
disclosure. The example is based on the Commission's case against 
Teami, LLC, and its owners.\38\ Two commenters supported the example 
\39\ and a third asked the Commission to explain why the disclosure is 
unlikely to be noticed, read, or understood.\40\ The Commission is 
clarifying the example by stating that, if the endorsement is visible 
without having to click on the link labeled ``more,'' but the 
disclosure is not visible without the viewer doing so, then the 
disclosure is not unavoidable and thus is not clear and conspicuous.
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    \38\ Complaint at 12-15, 17-18, FTC v. Teami, LLC, No. 8:20-cv-
00518 (M.D. Fla. Mar. 5, 2020).
    \39\ BBB National Programs at 5, Consumer Reports at 8.
    \40\ ANA at 5-6.
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    Proposed Example 10 posits that, when an ad is targeted to older 
consumers, whether the disclosure is clear and conspicuous will be 
evaluated from the perspective of older consumers, including those with 
diminished auditory, visual, or cognitive processing abilities. One

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commenter, asserting the example is premised on unfair, insulting, and 
prejudicial assumptions about older adults and their abilities to 
understand ads, asked that the example be withdrawn.\41\ The example 
does not assume older adults necessarily have diminished capacities, 
but it is reasonable to assume that population includes such 
individuals. The Commission's Deception Policy Statement recognizes 
that when ``representations . . . are targeted to a specific audience . 
. . the Commission determines the effect of the practice on a 
reasonable member of that group.'' \42\
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    \41\ Id. at 6.
    \42\ See FTC Policy Statement on Deception, appended to 
Cliffdale Assocs., Inc., 103 F.T.C. 110, 174, 179 (1983).
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    Proposed Example 11 is intended to show how the definition of 
``clear and conspicuous'' could apply to an advertisement microtargeted 
to a very discrete population. It imagines an advertisement for a 
cholesterol-lowering product that requires a disclosure because it 
contains testimonials about results that greatly exceed those generally 
experienced by the product's users. Based on online data collection, 
the ad is microtargeted to Spanish-speaking individuals who have high 
cholesterol levels and are unable to understand English. While the ad 
is in Spanish, the disclosure is only in English. One commenter 
expressed the view that the example was offensive and premised on 
inaccurate assumptions that a Spanish-speaking audience might be likely 
to have high cholesterol.\43\ The example is not based upon such an 
assumption but is instead an illustration of when a disclosure is 
needed and how that disclosure must be in a language the target 
audience will understand. The example referenced Spanish speakers 
because Spanish is the second-most spoken language in the United 
States. The Commission is revising the example to make it more 
generically about speakers of a ``particular language . . . who are 
unable to understand English.'' The Commission is also adding a 
statement that the disclosure must be in the same language as the ad.
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    \43\ ANA at 6.
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    Proposed Example 12 addresses fake negative reviews of a 
competitor's product. Three commenters supported the example,\44\ with 
one asking the Commission to state that commissioning a fake positive 
review is an unfair trade practice.\45\ As discussed above, the 
Commission is adding a statement that fake positive reviews used to 
promote a product are endorsements. The Commission is also adding a 
cross-reference to an example in Sec.  255.2 involving a manufacturer 
deceptively procuring a fake positive consumer review for its own 
product and having it published on a third-party review website.
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    \44\ Consumer Reports at 8, NAIMA at 2, Tripadvisor at 3-4.
    \45\ Tripadvisor at 4.
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    Proposed Example 13 says it is a deceptive practice for users of 
social media platforms to purchase or create indicators of social media 
influence and then use the indicators to misrepresent such influence 
for a commercial purpose. One commenter indicated support for the 
example.\46\ Another commenter asserted the purchase or creation of 
fake followers is inherently a misrepresentation and should be 
prohibited per se.\47\ Although the use of fake followers may be 
inherently ``misleading'' as that term is colloquially used, the 
Commission's jurisdiction is limited to commercial speech and does not 
reach the use of fake followers for vanity or other non-commercial 
purposes. A third commenter was concerned the example suggested that 
the Commission would hold ad agencies liable when they recommend an 
influencer who, unbeknownst to the agencies, happens to be using fake 
indicators of social media influence.\48\ Nothing in the Guides 
addresses holding ad agencies liable for merely recommending such an 
influencer.
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    \46\ NAIMA at 2.
    \47\ Consumer Reports at 5-6, 8.
    \48\ AAAA at 8.
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B. Section 255.1 General Considerations

1. Quotation of Endorsers
    As revised, proposed Sec.  255.1(b) stated that an advertisement 
need not present an endorser's message in the exact words of the 
endorser unless the ad presents the endorsement as a quotation. One 
commenter said the reference to a ``quotation'' is confusing.\49\ The 
Commission is modifying the example to say an ad must use an endorser's 
exact words only when the ad represents that it is presenting the 
endorser's exact words, such as by using quotation marks.
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    \49\ ANA at 6-7.
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2. Liability of Advertisers
    Section 255.1.(d) addresses the potential liability of advertisers. 
Among other things, the proposed revised subsection stated advertisers 
are subject to liability for misleading or unsubstantiated statements 
made through endorsements when there is a connection between the 
advertiser and the endorser.\50\ Two commenters said they supported the 
proposed revised subsection.\51\ Another commenter stated the reference 
to ``when there is a connection between the advertiser and the 
endorser'' is unnecessary because there has to be a sponsoring 
advertiser for there to be an endorsement.\52\ The Commission is 
deleting that language because, as defined, an endorsement has to be an 
advertising, marketing, or promotional message. It is not correct, 
however, that a connection is needed for an advertiser to be liable for 
an endorsement. If, for example, an advertiser retweets a positive 
statement by an unrelated third party or republishes in an 
advertisement a positive review by an unrelated third party, that 
statement or review becomes an endorsement for which an advertiser is 
liable, despite the lack of any such connection.
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    \50\ One commenter implied that Sec.  255.1(d) may limit the 
liability faced by multi-level marketing companies (MLMs) and their 
participants for deceptive claims made by the participants. See BBB 
National Programs at 6-7. The Commission does not agree. Even when a 
person is talking about their own experience using a product or 
service, they could face liability for deceptive claims under 
section 5 based on being the advertiser, providing the means and 
instrumentalities to deceive, or other theories. And a principal is 
liable for its agents' violations.
    \51\ AOA at 2, Consumer Reports at 8.
    \52\ ANA at 7.
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    One commenter asserted it is unreasonable to hold an advertiser 
liable for what endorsers say unless the endorsers had a contractual 
relationship to the advertiser and the advertiser either: (1) failed to 
properly instruct endorsers and take action when it became aware of 
failures to comply or (2) instructed the endorsers to make a false 
claim.\53\ Another commenter said expecting advertisers to monitor 
their endorsers is unreasonable and unnecessary.\54\ The Commission 
disagrees with both commenters and expects advertisers to be 
responsible for and monitor the actions of their endorsers. A different 
commenter asked the Commission to continue to allow flexibility in 
monitoring such as FTC staff business guidance currently provides,\55\ 
and yet another commenter asked for more detailed guidance on effective 
oversight mechanisms.\56\ Such detailed guidance is beyond the scope of 
these Guides but may be addressed in staff business guidance. The 
Commission is also changing a statement in the subsection that an 
advertiser may be liable ``for an endorser's deceptive statement'' even

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when the endorser is not liable. The Commission is clarifying that the 
advertiser's liability may extend to ``deceptive endorsements'' and not 
just the narrower issue of whether an endorser's statement is true. For 
example, the advertiser could be held liable for disseminating a 
television ad including an endorser making a truthful statement that 
reflects atypical results of using the product.
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    \53\ RILA at 4-5.
    \54\ N/MA at 4.
    \55\ ESA at 3.
    \56\ BBB National Programs at 6-7.
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3. Liability of Endorsers
    Proposed new Sec.  255.1.(e) addresses the liability of endorsers. 
Three commenters were supportive of this paragraph,\57\ with one of 
them suggesting that it address the liability of reviewers who 
represent falsely that they personally used a product or experienced a 
service.\58\ The Commission is adopting that suggestion.
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    \57\ Id. at 7, Generation Patient at 2, Tripadvisor at 4.
    \58\ Tripadvisor at 4.
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4. Liability of Intermediaries
    Proposed new Sec.  255.1.(f) addresses the liability of 
intermediaries generally and listed several types of intermediaries. 
Four commenters supported the proposed paragraph as written,\59\ and 
another commenter suggested specifically identifying review brokers as 
potentially liable.\60\ A different commenter stated that the undefined 
term ``intermediaries'' could sweep in entities for which there is no 
agency relationship, privity, or participation in the misconduct.\61\ 
To address this concern, the Commission is changing the language of the 
provision to refer to the specific entities that it intends to address 
(i.e., advertising agencies, public relations firms, review brokers, 
reputation management companies, and ``other similar intermediaries''). 
The Commission is also revising the paragraph to state that such 
entities may also be liable for their roles in ``creating'' ads 
containing endorsements that they know or should know are deceptive. 
Another comment said that the Commission should not seek to hold liable 
``an entity [that] merely provides production services but is not 
involved in developing content for an advertisement and does not have 
direct knowledge about the accuracy of statements in an endorsement or 
testimonial.'' \62\ The Commission does not believe that entities that 
merely provide such production services are ``other similar 
intermediaries'' as described in the revised language.
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    \59\ BBB National Programs at 7, Generation Patient at 2, NAIMA 
3.
    \60\ CDI at 2.
    \61\ CCIA at 2-3.
    \62\ N/MA at 4.
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5. Misuse of Images of Endorsers
    Proposed new Sec.  255.1.(g) says that the use of an endorsement 
with the image or likeness of a person other than the actual endorser 
is deceptive if it misrepresents an attribute of the endorser that 
would be material to consumers in the context of the endorsement, e.g., 
an endorser's complexion in the context of an ad for an acne treatment. 
Three commenters supported this new paragraph.\63\
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    \63\ BBB National Programs at 8, Consumer Reports at 9, NAIMA at 
3.
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6. Examples
    Example 1 of Sec.  255.1 addresses whether an endorsement is still 
valid after a product has been reformulated. The Commission is making 
minor modifications to clarify the first subpart of the example. A 
proposed new second subpart addressed an endorsement in a social media 
post. It said that even if an endorser would no longer use or recommend 
a reformulated product, there is no obligation for the endorser to 
modify or delete a historic post as long as the date of the post is 
clear and conspicuous to viewers. One commenter supported the example 
\64\ and another said that it is not clear from the example whether the 
advertiser, as opposed to the endorser, needs to change or delete 
historical posts.\65\ The Commission is modifying the example to 
clarify that the advertiser is not under any more obligation to do so 
than the endorser. The proposed new subpart also addressed sharing or 
reposting of the original post after the product's reformulation. The 
Commission is clarifying the example and adding that, under such 
circumstances, the advertiser would need to confirm that the endorser 
holds the views expressed in the original post about the reformulated 
product.
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    \64\ BBB National Programs at 8-9.
    \65\ Dudukovich at 5.
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    Proposed new Example 2 involves an ad featuring a well-known DJ who 
implicitly communicates owning and regularly using an advertised coffee 
maker, but who only used it during a demonstration by the product's 
manufacturer. One commenter said that the example described was not 
clearly an ad.\66\ The Commission is modifying the example to clarify 
that the DJ is speaking during a radio advertisement played during 
commercial breaks. Another commenter asked the Commission to consider 
clarifying that the DJ could have used the coffeemaker every weekday at 
the studio and that the endorsement could have made the context of such 
use clear and understandable.\67\ The commenter is correct in that the 
DJ might have used the coffee maker regularly without owning it. The 
Commission is simplifying the example, focusing on the implied claim of 
regular use, and deleting the reference to ownership.
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    \66\ Id. at 6.
    \67\ ANA at 7.
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    Example 5 addresses the potential liability of an influencer for 
making an unsubstantiated health claim, as well as the advertiser's 
potential liability for the influencer's endorsement. The Commission 
disagrees with a commenter who asserted the proposed revised example is 
too complicated and should not address potential liability.\68\
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    \68\ ANA at 8.
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    Proposed new Example 6 addresses two alternative scenarios in which 
the pictures accompanying endorsements featured on a marketer's website 
are not of the actual endorsers and misrepresent material attributes of 
the endorsers. Two commenters supported the example.\69\ The Commission 
is clarifying in the first alternative that the pictures accompanying 
acne treatment testimonials were ``stock photos . . . purchased'' by 
the advertiser. The second alternative involves a testimonialist who 
says they lost 50 pounds using a weight-loss product. The subpart 
explains the testimonial on the marketer's website was accompanied by 
an ``after'' picture of a person who appears to weigh 100 pounds but 
the testimonial was from someone who weighed 250 pounds after the 
weight loss. One commenter sought to correct a statement about the 
endorser appearing to have lost ``one-third of their original body 
weight,'' thinking the Commission had made a mathematical error.\70\ 
The example was correct as written, but the Commission is adding a 
parenthetical to the example explaining its calculation.
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    \69\ BBB National Programs at 9, Consumer Reports at 9. One of 
those commenters also supported proposed new Example 7 about a 
misleading picture of a child in an ad for a learn-to-read program. 
Consumer Reports at 9.
    \70\ Consumer Reports at 9.
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C. Section 255.2 Consumer Endorsements

1. Substantiation for Performance Claims
    Section 255.2(a) says an advertiser must possess and rely upon 
adequate substantiation, including, when appropriate, competent and 
reliable scientific evidence, to support claims

[[Page 48097]]

made through endorsements in the same manner the advertiser would be 
required to do if it had made the representation directly. The 
Commission proposed clarifying this principle applies to both express 
and implied claims. One commenter said this clarification is 
helpful.\71\
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    \71\ BBB National Programs at 10.
---------------------------------------------------------------------------

2. Typicality Claims
    Currently, Sec.  255.2(b) says that, if an advertiser does not have 
substantiation that an 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 that the advertiser must possess and rely 
on adequate substantiation for the representation in such disclosure. 
One commenter supported this principle.\72\ The Commission proposed 
adding a sentence that the disclosure of the generally expected 
performance should be presented in a manner that does not itself 
misrepresent what consumers can expect. One commenter supported that 
position.\73\ The Commission is also adding a sentence to the paragraph 
explaining that, to be effective, a disclosure must alter the net 
impression of an advertisement so it is not misleading.
---------------------------------------------------------------------------

    \72\ Generation Patient at 3.
    \73\ BBB National Programs at 10-11.
---------------------------------------------------------------------------

3. Consumer Reviews
    The Commission proposed adding a new Sec.  255.2(d) addressing 
advertisers procuring, suppressing, boosting, organizing, or editing 
consumer reviews of their products or services in a way that distorts 
or otherwise misrepresents what consumers think of their products. One 
commenter asked whether this guidance covered upvoting, publishing, or 
selectively publishing reviews.\74\ The Commission is clarifying the 
new subsection by adding publishing, upvoting, downvoting, and 
reporting.
---------------------------------------------------------------------------

    \74\ Dudukovich at 6. Upvoting or downvoting a review is casting 
a vote in support of or in disapproval of it by clicking on an arrow 
or other icon, usually affecting the review's rank or position on a 
website or platform.
---------------------------------------------------------------------------

    Four commenters supported the new paragraph.\75\ A different 
commenter said the Commission was using the Guides in lieu of proper 
rulemaking in seeking to regulate the entire industry's use of customer 
reviews.\76\ In the context of four subsequent examples illustrating 
the new principle, the same commenter stated the Commission was 
unnecessarily wading into an analysis of how moderation of user-
generated reviews may negate immunity otherwise granted pursuant to 
section 230 of the Communications Decency Act (the ``CDA''), 47 U.S.C. 
230, and the Commission's guidance may lead to inconsistencies with 
``ongoing'' legal principles.\77\ The commenter did not identify any 
actual or purported inconsistencies between the Commission's guidance 
and the CDA or other laws, and the Commission sees none. The Commission 
reiterates that the Guides are not regulations; as stated in Sec.  
255.0(a), the Guides are simply ``administrative interpretations of . . 
. section 5 of the FTC Act'' in order to ``provide the basis for 
voluntary compliance.'' The Commission need not engage in rulemaking to 
offer such guidance.
---------------------------------------------------------------------------

    \75\ BBB National Programs at 11, CCIA at 3-4, Consumer Reports 
at 9, Tripadvisor at 3.
    \76\ ANA at 8.
    \77\ Id. at 9-10.
---------------------------------------------------------------------------

4. Examples
    Example 2 of Sec.  255.2 involves an ad for a heat pump featuring 
three testimonials about monetary savings that will likely be 
interpreted as conveying such savings are representative of what buyers 
can generally expect. The Commission proposed expanding the example to 
illustrate how disclosures of generally expected results could 
themselves be misleading if they apply only in limited circumstances 
not described in the advertisement. Two commenters supported the 
inclusion of the additional guidance.\78\
---------------------------------------------------------------------------

    \78\ BBB National Programs at 11-12, NAIMA at 5.
---------------------------------------------------------------------------

    Example 4 addresses when an ad for a weight-loss product \79\ 
requires and does not require a disclosure of generally expected 
results and what such a disclosure should say. The Commission proposed 
revising the example and expanding it from three to six subparts.
---------------------------------------------------------------------------

    \79\ The Commission is changing the name of the product from 
WeightAway to QRS Weight-Loss in the Guides.
---------------------------------------------------------------------------

    Paragraph (ii) of Example 4 said that if a woman says, ``I lost 50 
pounds in 6 months with WeightAway,'' a disclosure such as ``Average 
weight loss is 1-2 pounds per week'' is inadequate and likely 
deceptive. Although no commenters addressed this subpart, the 
Commission is modifying this statement to better explain why such a 
disclosure is inadequate and likely deceptive.
    Paragraph (iii) of Example 4 said a disclosure such as ``most women 
who use WeightAway lose between 10 and 50 pounds'' is inadequate 
because the range specified is so broad it does not sufficiently 
communicate what users can generally expect. One commenter asked the 
Commission to state the disclosure would be acceptable if the top of 
the range (e.g., 50 pounds) had an appreciable number of 
incidences.\80\ The Commission believes that, even if some appreciable 
number of consumers lost 50 pounds, the range would still not 
adequately communicate what users can generally expect. A marketer 
could instead disclose the generally expected result and also state 
what percentage of customers lose 50 pounds or more.
---------------------------------------------------------------------------

    \80\ ANA at 9.
---------------------------------------------------------------------------

    Paragraph (iv) of Example 4 illustrates how a disclosure of mean 
weight loss could be deceptive when the mean is substantially affected 
by outliers. One commenter said the new guidance was helpful.\81\ 
Another commenter said it supports ``the allowance of `mean 
computation' ''; \82\ the Commission interprets that comment to refer 
to the fact that disclosures could use mean weight loss in a non-
deceptive way.
---------------------------------------------------------------------------

    \81\ BBB National Programs at 14-15.
    \82\ NAIMA at 5.
---------------------------------------------------------------------------

    Paragraph (v) of Example 4 says that, if a manufacturer procures a 
fake review that is published on a third-party review website, the 
review is a deceptive endorsement because it was not written by a bona 
fide user of the product. The subpart cross-references Sec.  255.1(c). 
Two commenters supported the inclusion of this paragraph.\83\ The 
Commission is adding that the review would also be deceptive because it 
does not reflect the honest opinions, findings, beliefs, or experience 
of the endorser, with a cross-reference to Sec.  255.1(a).
---------------------------------------------------------------------------

    \83\ Consumer Reports at 9, NAIMA at 5.
---------------------------------------------------------------------------

    Paragraph (vi) of Example 4 said the disclosure ``The typical 
weight loss of WeightAway users who stick with the program for 6 months 
is 35 pounds'' is inadequate if only one-fifth of those who start the 
weight-loss program stick with it for six months. One commenter 
supported the guidance \84\ while another asserted the disclosure was, 
in fact, adequate.\85\ The Commission continues to believe, as 
explained in the example, the disclosure is inadequate because it does 
not communicate what the typical outcome is for users who start the 
program.
---------------------------------------------------------------------------

    \84\ BBB National Programs at 15.
    \85\ ANA at 9.
---------------------------------------------------------------------------

    One commenter suggested the Guides specifically state that 
selectively posting bona fide positive testimonials to third-party 
review sites would constitute a deceptive practice.\86\ The Commission 
is adding a paragraph (vii) to Example 4, saying that if a manufacturer 
forwards

[[Page 48098]]

only favorable reviews for its product to a third-party review website 
or omits unfavorable reviews, it is engaging in a misleading practice.
---------------------------------------------------------------------------

    \86\ Consumer Reports at 9.
---------------------------------------------------------------------------

    Proposed new Example 8 addresses an online retailer that suppresses 
negative reviews on its website, stating that the resulting product 
pages would be misleading. The example also addresses fact patterns in 
which the retailer blocks reviews containing profanity or complaining 
about the owner's policy positions. Based upon the Consumer Review 
Fairness Act (the ``CRFA''), 15 U.S.C. 45b, the example says sellers 
are not required to display customer reviews that contain unlawful, 
harassing, abusive, obscene, vulgar, or sexually explicit content; 
content that is inappropriate with respect to race, gender, sexuality, 
or ethnicity; or reviews that the seller reasonably believes are fake, 
so long as a seller's criteria for not displaying such reviews are 
applied uniformly to all reviews submitted. The Commission also said 
sellers are not required to display reviews that are unrelated to their 
products or services, but customer service is related to the seller's 
products and services. One commenter suggested the Commission expand 
the exceptions listed to include other information that should not be 
published, such as sensitive personal information.\87\ The CRFA also 
includes exceptions for reviews that ``contain[] the personal 
information or likeness of another person, or [are] libelous,'' \88\ 
content ``that is clearly false or misleading,'' \89\ or ``trade 
secrets or privileged or confidential commercial or financial 
information,'' \90\ and the Commission is adding that language to the 
example. Another commenter said product reviews that are just about 
customer service should not be displayed when they are about the 
customer service of a different seller.\91\ The Commission agrees and 
is modifying the example so it refers to ``a particular seller's 
customer service.'' One commenter took the view that all product 
reviews including those just about customer services should be 
displayed to allow consumers reading the reviews to decide for 
themselves how to interpret them,\92\ while another one said product 
reviews about services should not need to be published when there are 
other mechanisms for customer service feedback.\93\ The Commission 
responds that the purpose of publishing such reviews about customer 
service is to protect and inform potential purchasers of the products, 
rather than simply to provide a means for feedback. One commenter 
agreed with the example, saying that sellers should be able to elect 
not to display reviews that contain objectionable content, as long as 
the content moderation is done without improper consideration as to 
whether the review is negative, neutral, or positive.\94\ The commenter 
also asked that the right of third-party review platforms to block 
similar content be noted.\95\ The Commission agrees that third-party 
review platforms should be able to similarly block such content, but it 
does not see the need to address the rights of third-party review 
platforms in the Guides at this time.
---------------------------------------------------------------------------

    \87\ Dudukovich at 6.
    \88\ See 15 U.S.C. 45b(b)(2)(C)(i).
    \89\ See 15 U.S.C. 45b(b)(2)(C)(iii).
    \90\ See 15 U.S.C. 45b(b)(3)(A).
    \91\ Bazaarvoice at 1-2.
    \92\ Trustpilot at 3-4.
    \93\ RILA at 5-6.
    \94\ Tripadvisor at 4.
    \95\ Id.
---------------------------------------------------------------------------

    In proposed new Example 10, a manufacturer uses unfair threats of 
legal action or physical threats to coerce consumers into deleting 
negative reviews of its products which the consumers had posted on 
third-party review websites. One commenter supports the example and 
would expand it beyond violence or litigation to other less drastic 
coercive measures.\96\ The Commission is expanding the example to add 
threats to disclose embarrassing information. The Commission also notes 
the listed threats are intended as illustrative and not exhaustive. 
Another commenter expressed concerns that simply sending a letter 
attempting to correct false statements could be considered 
threatening.\97\ The Commission would not consider simply notifying a 
reviewer of inaccuracies to be threatening. The Commission is also 
modifying the example to describe the circumstances in which threatened 
legal action would be considered unfair or deceptive. A third commenter 
suggested the Commission is improperly trying to expand the CRFA 
through a Guide-refreshing process when it should ask Congress to do so 
and said the Commission has not placed into the record any evidence 
that advertisers are frequently threatening reviewers.\98\ The 
Commission is not attempting to expand the CRFA. It is interpreting 
section 5 of the FTC Act. Any enforcement actions based upon conduct 
inconsistent with the Guides would have to establish that the conduct 
violated section 5. The Commission need not establish that an action is 
prevalent in order to give guidance that it believes the action is 
unfair. The example is based upon Commission cases against Roca Labs 
and World Patent Marketing.\99\ Finally, the Commission is clarifying 
how the use of such threats can be deceptive or unfair.
---------------------------------------------------------------------------

    \96\ Consumer Reports at 9.
    \97\ NAIMA at 5-6.
    \98\ ANA at 10.
    \99\ Complaint at 25, FTC v. Roca Labs, Inc., No. 8:15-cv-02231 
(M.D. Fla. Sept. 24, 2015); Complaint at 8-10, 12, World Patent 
Mktg., Inc., No. 1:17-cv-20848 (S.D. Fla. Mar. 6, 2017).
---------------------------------------------------------------------------

    Although it was not addressed by the commenters, the Commission is 
adding an alternative scenario to Example 10 based upon the facts of a 
recent Commission case.\100\ The new scenario involves a business 
abusing a third-party review platform's mechanism for reporting 
suspected fake reviews. A manufacturer routinely flags negative reviews 
of its products as fake without a reasonable basis for believing they 
are fake, which results in many truthful reviews being removed from the 
website. Such conduct is an unfair or deceptive practice.
---------------------------------------------------------------------------

    \100\ Complaint at 26, 32, FTC v. DK Automation LLC, No. 1:22-
cv-23760 (S.D. Fla. Nov. 16, 2022).
---------------------------------------------------------------------------

    Proposed new Example 11 addresses a marketer engaging in review 
gating, which involves asking past purchasers to provide feedback on a 
product and then inviting only those who give positive feedback to post 
online reviews on one or more websites. The example notes that the 
practice ``may be unfair or deceptive if it results in the posted 
reviews being substantially more positive than if the marketer had not 
engaged in the practice.'' Two commenters said that the example was 
helpful,\101\ another suggested expanding it to address upvoting, 
downvoting, and selective publication,\102\ and a third said that the 
Commission is unlawfully prohibiting advertisers from exercising their 
commercial speech rights by encouraging a happy customer to write a 
review.\103\ The Commission added publishing, upvoting, downvoting, and 
reporting to the general principle expressed in Sec.  255.2(d) and does 
not believe it needs to add them to this example. The Commission is not 
saying or suggesting that businesses cannot ask happy customers for 
reviews. As the example expressly states, the marketer could have 
simply invited all recent purchasers to post reviews, even if it had 
expressed its hope that the reviews would be positive. The example also 
states clearly that deception or unfairness occurs not in the selective

[[Page 48099]]

asking of customers for reviews but only when the posted reviews are 
substantially more positive as a result.
---------------------------------------------------------------------------

    \101\ BBB National Programs at 15-16, Consumer Reports at 9.
    \102\ Dudukovich at 6.
    \103\ ANA at 10.
---------------------------------------------------------------------------

D. Section 255.3 Expert Endorsements

1. An Exercise of Expertise
    The proposed revision of Sec.  255.3(b) said that an expert 
endorsement must be supported by an actual exercise of the expertise in 
evaluating product features or characteristics ``with respect to which 
the endorser has expertise.'' In the context of Example 6 of Sec.  
255.3, two commenters suggested more clearly addressing an expert's 
purported expertise--that is, the level of expertise that an endorser 
is represented as possessing.\104\ The Commission is modifying Sec.  
255.3(b) to make clear that the endorser must have exercised the 
expertise that they are ``represented'' as possessing.\105\
---------------------------------------------------------------------------

    \104\ Id. at 11, BBB National Programs at 16-17.
    \105\ In Example 6 of Sec.  255.3, the Commission is changing a 
reference to ``the purported degree of expertise'' to the 
``represented degree of expertise.''
---------------------------------------------------------------------------

2. Examples
    Example 2 of Sec.  255.3 describes an endorser of a hearing aid who 
is simply referred to as a ``doctor'' during an ad. The example says 
the ad likely implies the endorser is a medical doctor with substantial 
experience in the area of hearing. As revised, the proposed example 
would have said a non-medical ``doctor'' (e.g., an individual with a 
Ph.D. in audiology) or a physician without substantial experience in 
the area of hearing might be able to endorse the product, but at a 
minimum, the advertisement must make clear the nature and limits of the 
endorser's expertise. Two comments supported the proposed revised 
example,\106\ two comments asked the Commission to clarify it is 
acceptable to describe an audiologist with a doctorate as ``Doctor of 
Audiology,'' ``Au.D., Audiologist'' or ``Ph.D., Audiologist,'' \107\ 
and one comment asked why a doctor who clearly and conspicuously 
discloses the nature and limits of their expertise might not be able to 
endorse a product.\108\ On reflection, the Commission recognizes that, 
in the absence of a white coat, a stethoscope, or other indicia of an 
endorser being a physician, consumers are likely to believe an endorser 
identified as a doctor has expertise in the area of hearing but might 
not expect the doctor to be a medical doctor. The Commission is 
revising the example such that either a medical doctor with substantial 
experience in audiology or a non-medical doctor with a Ph.D. or Au.D. 
in audiology could endorse the hearing aid as a ``doctor'' without any 
disclosure. Finally, the example will say a doctor without substantial 
experience in the area of hearing might be able to endorse the product 
if the ad clearly and conspicuously discloses the nature and limits of 
the endorser's expertise. Given the revision to the example, it is no 
longer necessary to address how a person with a doctorate in audiology 
should be identified. The example continues to say the doctor without 
substantial experience in the area of hearing might be able to endorse 
the product as a doctor if the advertisement clearly and conspicuously 
discloses the nature and limits of the endorser's expertise.
---------------------------------------------------------------------------

    \106\ BBB National Programs at 17, NAIMA at 6.
    \107\ Academy at 2-3, HIA at 1-2.
    \108\ ANA at 11.
---------------------------------------------------------------------------

    Example 3 refers to testing an automobile part's ``efficacy,'' 
which the Commission is changing to testing the part's ``performance.''

E. Section 255.4 Endorsements by Organizations

    Section 255.4 addresses endorsements by organizations. The 
Commission proposed adding two new examples to this section.
    Proposed new Example 2 describes a trampoline manufacturer that 
sets up and operates what appears to be an independent trampoline 
review website that reviews the manufacturer's trampolines, as well as 
those of competing manufacturers. The example says the claim of 
independence is false. Three commenters supported the example.\109\ One 
commenter asked why the example is in the ``organizations'' section of 
the Guides, rather than the material connections section.\110\ The 
Commission is rewording the example so the operator of the website 
appears to be an independent trampoline institute.
---------------------------------------------------------------------------

    \109\ BBB National Programs at 18, Consumer Reports at 10, NAIMA 
at 6.
    \110\ ANA at 12.
---------------------------------------------------------------------------

    Proposed new Example 3 involves a review website operator that 
accepts money from manufacturers in exchange for higher rankings of 
their products. The example says a manufacturer who pays for a higher 
ranking on the website may be held liable for deception. Two commenters 
supported the example.\111\ One of them suggested the Commission 
clarify that both the manufacturer who pays for a higher ranking and 
the site operator can be liable for misleading consumers and the 
Commission say that using a ranking methodology that results in higher 
rankings for products or services with a relationship to the rating 
site is misleading.\112\ The Commission is making both of those 
changes. One commenter said it was unclear how the example related to 
the Guides.\113\ The example belongs in the Guides because the review 
website is endorsing the products it is reviewing.
---------------------------------------------------------------------------

    \111\ BBB National Programs at 19, Consumer Reports at 10.
    \112\ BBB NATIONAL PROGRAMS at 19-20.
    \113\ ANA at 12.
---------------------------------------------------------------------------

F. Section 255.5 Disclosure of Material Connections

1. Whether Connections Are Material
    Section 255.5 addresses the need to disclose unexpected material 
connections between the endorser and seller of an advertised product. 
To be material, a connection must affect the weight or credibility the 
audience gives to the endorsement. The revised section gives examples 
of possible material connections. One commenter agreed with the general 
principle, as well as the specific examples described,\114\ while 
another supported the broad scope of possible material connections 
addressed in the section.\115\ Another commenter asked the Commission 
to add more examples of benefits to an endorser that are or could be 
material.\116\ The examples of possible material connections listed in 
Sec.  255.5 are meant to be illustrative rather than exhaustive, and 
the Commission does not believe it is necessary to expand the list.
---------------------------------------------------------------------------

    \114\ Generation Patient at 3.
    \115\ Tripadvisor at 3.
    \116\ TINA.org at 8-9.
---------------------------------------------------------------------------

    As proposed, the revised section would also acknowledge some 
connections may be immaterial because they are too insignificant to 
affect the weight or credibility the audience gives to endorsements. 
Two commenters asked for examples of connections that are immaterial. 
Whether a connection is too insignificant to be material is such a 
fact-specific question that it is difficult to devise a useful example 
of a necessarily immaterial connection.
2. Whether Connections Are Unexpected
    The most recent version of the Guides describes the type of 
connection that must be disclosed as one that ``is not reasonably 
expected by the audience.'' The Commission proposed restating this as 
``material connections do not need to be disclosed when they are 
understood or expected by all but an insignificant portion of the 
audience for an endorsement.'' The Commission is now rewording the 
statement in the Guides to say a ``material connection needs to be 
disclosed when a significant minority of the audience for an 
endorsement does

[[Page 48100]]

not understand or expect the connection.''
    One commenter asserted this guidance was ambiguous and asked that 
the Commission give concrete examples or delete the new language.\117\ 
Two other commenters similarly asked for examples.\118\ It may be that 
certain, well-known influencers have become so closely identified with 
a particular brand that almost everyone knows of their connection. It 
may also be that followers of some well-known influencers have all come 
to expect that the influencers endorse products only when paid. The 
Commission is reluctant to identify real-world influencers who might 
fit these descriptions. Whether any particular connection is or is not 
expected by an audience is a factual question that might require 
empirical testing, and that testing might only be relevant to a 
particular endorser or to a narrow set of circumstances.\119\
---------------------------------------------------------------------------

    \117\ CDI at 2.
    \118\ Bazaarvoice at 2, Dudukovich at 7.
    \119\ Although the Commission is not quantifying a 
``significant'' minority of an audience, it notes that in the 
context of net claim takeaway from an ad, it has stated that ``net 
takeaway of 10%--or even lower--supported finding that the ads 
communicated the claims at issue.'' See Telebrands Corp., 140 F.T.C. 
278, 325 & n.47 (2005), aff'd, 457 F.3d 354 (4th Cir. 2006).
---------------------------------------------------------------------------

    Another commenter stated consumers are more likely to understand 
and expect that influencers have received some sort of incentive when 
the influencers are reviewing or showcasing certain types of 
products.\120\ The commenter gave the example of video game influencers 
and asserted many video game players are aware influencers have access 
to games before those titles are made available to the public. The 
Commission recognizes this assertion may be true, but an audience 
knowing generally about such early access is not the same as knowing 
what a given influencer may have received--whether it's merely early 
access or a large monetary payment--in connection with a given game.
---------------------------------------------------------------------------

    \120\ ESA at 2.
---------------------------------------------------------------------------

    Two commenters were opposed to the proposed reworded 
principle.\121\ One said all connections should always be disclosed and 
the Commission was weakening the Guides.\122\ The Commission disagrees. 
As discussed above, the Guides already say the only connections that 
must be disclosed are ones not reasonably expected by the audience. If 
the audience does reasonably expect a connection, then it is not 
deceived by the lack of disclosure. Consistent with section 5 of the 
FTC Act, the Commission thus cannot require that every connection be 
disclosed. This position is also consistent with existing Example 2 of 
Sec.  255.5, which says that, if a film star endorses a particular food 
product in a television commercial, a disclosure is unnecessary because 
it is ordinarily expected that celebrities are paid for such 
appearances.
---------------------------------------------------------------------------

    \121\ Consumer Reports at 10, Generation Patient at 3.
    \122\ Consumer Reports at 10.
---------------------------------------------------------------------------

    The other commenter who opposed the revised guidance asked how one 
determines that a connection is understood by all but an insignificant 
portion of the audience.\123\ As discussed above, the Commission has 
reworded its guidance in terms of a significant minority of the 
audience not understanding or expecting the connection. Again, the 
question of whether any particular connection is or is not expected by 
an audience is highly fact-specific and in some cases its resolution 
might require empirical testing. The Guides do contain multiple 
examples with scenarios in which the Commission is comfortable saying 
at least a significant minority of the audience does not or is unlikely 
to understand or expect the connection.
---------------------------------------------------------------------------

    \123\ Generation Patient at 3.
---------------------------------------------------------------------------

    One commenter asked the Commission to require marketers to 
substantiate that a material connection need not be disclosed because 
it is understood or expected by the audience.\124\ In a section 5 case, 
the Commission has the burden of proving a connection is material and 
is not able to shift the burden of proof to the marketer.
---------------------------------------------------------------------------

    \124\ TINA.org at 9.
---------------------------------------------------------------------------

3. Details of Connections
    The Commission proposed stating a disclosure of a material 
connection does not require the complete details of the connection but 
must clearly communicate the nature of the connection sufficiently for 
consumers to evaluate its significance.
    One commenter said disclosures of material connections should not 
require the dollar amount of any payment \125\ and another supported 
not having to disclose the details of a connection.\126\ Another 
commenter said influencers should disclose how much they are being paid 
because the ``large scope and range of differing pay might impact what 
products influencers are pushing to their audience.'' \127\ The 
Commission is not convinced consumers are generally misled by not 
knowing how much influencers are paid.
---------------------------------------------------------------------------

    \125\ InfluenceLogic at 1.
    \126\ N/MA at 2.
    \127\ Generation Patient at 3.
---------------------------------------------------------------------------

    A different commenter asked if the new statement in the Guides 
meant a disclosure like ``#Ad'' is now insufficient.\128\ That is not 
the Commission's intention. The Commission is adding a new example, 
drawn from staff business guidance, to illustrate when a disclosure 
does not adequately communicate the nature of the material connection. 
In new Example 13, an app developer gives a consumer a 99-cent game app 
for free in order to review it. A disclosure that the consumer was 
given the app for free suggests the consumer did not receive anything 
else for the review, which would be deceptive if the app developer also 
gave the consumer $50 for the review.
---------------------------------------------------------------------------

    \128\ Dudukovich at 8.
---------------------------------------------------------------------------

4. Examples \129\
---------------------------------------------------------------------------

    \129\ The Commission is deleting an unnecessary sentence 
introducing the examples to Sec.  255.5.
---------------------------------------------------------------------------

    Example 3 of Sec.  255.5 involves a professional tennis player who 
has a contractual relationship with a laser vision correction clinic. 
The contract provides for payment to the athlete for speaking publicly 
about their vision correction surgery at the clinic. One commenter 
suggested noting that, if the surgery had been performed for free, and 
if consumers would not have expected that to have been the case, the 
free surgery is a material connection that would require 
disclosure.\130\ The receipt of free surgery is already addressed in 
what the Commission proposed as subpart 2 of the example.
---------------------------------------------------------------------------

    \130\ BBB NATIONAL PROGRAMS at 20.
---------------------------------------------------------------------------

    As proposed, new paragraph (ii) of Example 3 began by stating the 
player ``also'' touts the results of the surgery ``in a social media 
post.'' It said the relationship should be disclosed even if the 
relationship involves no payments but only the tennis player getting 
the laser correction surgery for free or at ``a reduced cost.'' One 
commenter raised three concerns with this subpart of the example. It 
said the use of ``also'' rather than ``instead'' might indicate the FTC 
intends that the hypothetical facts only in the aggregate produce the 
stated outcome.\131\ The Commission will change ``also'' to 
``instead.'' \132\ The commenter also asked the Commission to 
articulate more clearly why the use of the tennis player's endorsement 
on the

[[Page 48101]]

clinic's social media page would not reasonably be expected by the 
audience.\133\ The example is intended to address a post by the tennis 
player and not by the clinic, so the Commission is changing ``in a 
social media post'' to ``in the player's social media post.'' An 
endorsement disseminated from the clinic's social media account is 
addressed in the example's third subpart. Finally, the commenter asked 
whether receipt of discounted products or services is always material 
or whether there is a threshold level of discount that makes it 
material.\134\ A discount is not necessarily material, but there is not 
a clear line between a material discount and a non-material one. The 
Commission is changing the example so it refers to receiving the 
surgery at ``a significantly reduced cost.''
---------------------------------------------------------------------------

    \131\ ANA at 14.
    \132\ The same commenter made a similar comment about the 
introduction to subpart 2 of Example 4 of Sec.  255.5 (ANA at 15) 
and the Commission is making the same change to the subpart. In 
addition, the Commission is clarifying that the reference to ``more 
likely to expect'' in that subpart means more likely to expect than 
in a television commercial.
    \133\ ANA at 13.
    \134\ Id. at 14.
---------------------------------------------------------------------------

    As proposed, new paragraph (iii) of Example 3 varies the example so 
that the clinic disseminates the tennis player's endorsement from its 
own social media account. One commenter asserted that, if the tennis 
player's post already has a disclosure, the clinic should not have to 
add a disclosure.\135\ Another commenter stated the Commission failed 
to articulate why the audience would not reasonably expect the tennis 
player's endorsement on the clinic's social media page was 
compensated.\136\ The commenter continued that, in many instances, an 
advertiser's use of a celebrity endorser on its own social media should 
not need a disclosure because one would expect that the celebrity was 
paid to provide the endorsement.\137\ The commenter suggested (a) the 
example clarify that the clinic is reposting or sharing the tennis 
player's social media endorsement from the prior paragraph to the 
clinic's social media, (b) the advertiser needs to disclose the 
relationship because the tennis player did not clearly and 
conspicuously disclose it in the first place, and (c) given the nature 
of the endorsement (i.e., a personally created statement from the 
tennis player versus a television commercial with an endorsement), and 
in the context of the clinic's social media, the viewing audience would 
likely not reasonably expect the tennis player is being 
compensated.\138\ The Commission is adopting most of these commenters' 
suggestions and clarifying that the clinic's post is a repost. As 
modified, the example makes clear the original post either did not have 
a clear and conspicuous disclosure or had a disclosure that is not 
clear and conspicuous in the repost.
---------------------------------------------------------------------------

    \135\ Dudukovich at 8.
    \136\ ANA at 13-14.
    \137\ Id. at 13.
    \138\ Id. at 14.
---------------------------------------------------------------------------

    Example 5 involves a restaurant whose patrons are informed they 
will be interviewed by the advertiser as part of a television promotion 
of its new ``meat-alternative'' burger. The example said the 
advertisement should clearly and conspicuously inform viewers the 
patrons on screen knew in advance they might appear in a television 
advertisement ``if they gave the burger a good review.'' One commenter 
said the Commission should remove the language regarding appearance in 
a television advertisement ``if they gave the burger a good review.'' 
\139\ The Commission agrees. The disclosure need not mention giving the 
burger a good review; it is implicit someone would know they would 
appear on television only if they gave the product a good review.
---------------------------------------------------------------------------

    \139\ ANA at 15.
---------------------------------------------------------------------------

    A new paragraph (ii) of Example 6 addresses incentivized reviews 
and says any review that fails to clearly and conspicuously disclose 
incentives provided to that reviewer is likely deceptive. Three 
commenters supported this guidance.\140\ The example continues, noting 
that, even if adequate disclosures appear in each incentivized review, 
the practice could still be deceptive if the solicited reviews contain 
star ratings that are included in an average star rating for the 
product and if that inclusion materially increases that average star 
rating. One commenter did not disagree with the Commission's position 
but noted that, in its experience, including incentivized ratings 
generally does not materially affect a product's average star rating; 
it did acknowledge possible exceptions (for example, if the product has 
few reviews other than incentivized ones).\141\ A second commenter said 
the Commission should not prohibit including incentivized reviews in 
the average star ratings and argued the Commission did not have 
evidence of a difference between aggregate star ratings containing and 
not containing incentivized reviews.\142\ The Commission is not saying 
incentivized reviews materially inflate average star ratings; just 
that, if they do, then they could be deceptive. A third commenter 
suggested allowing the website operator to make a blanket disclosure 
regarding incentivized reviews.\143\ A fourth commenter said 
prohibiting the inclusion of incentivized reviews (when incentives are 
provided fairly and are clearly and conspicuously disclosed) in 
aggregate star ratings could hurt competition and, as a practical 
matter, it may be infeasible for many advertisers to discern and 
calculate the average star rating without incentivized reviews.\144\ 
The Commission is adding a statement to the example, stating that, if 
such a material increase occurs, the marketer likely would need to 
provide a clear and conspicuous disclosure to people who see the 
average star rating.
---------------------------------------------------------------------------

    \140\ Bazaarvoice at 2, BBB NATIONAL PROGRAMS at 20-21, 
Tripadvisor at 5.
    \141\ Bazaarvoice at 2.
    \142\ RILA at 2-4.
    \143\ Dudukovich at 8-9.
    \144\ ANA at 15.
---------------------------------------------------------------------------

    As rewritten, Example 7 discusses a woodworking influencer who 
received an expensive, full-size lathe from its manufacturer in the 
hope the influencer would post about it. The influencer posts videos 
containing favorable comments about the lathe. The example said, if a 
significant proportion of viewers are likely unaware the influencer 
received the lathe free of charge, the woodworker should clearly and 
conspicuously disclose receiving it for free. One commenter supported 
the guidance.\145\ A different commenter said ad agencies are 
contracted to monitor compliance for a contracted period of time and 
should not be expected to conduct ``indefinite monitoring for 
decades.'' \146\ A third commenter said the Commission missed an 
opportunity in the example to provide guidance on how long the 
woodworker might need to continue to make a disclosure.\147\ The 
Commission recognizes a connection probably becomes less material over 
time but is not prepared to set a time frame that divides material from 
immaterial, a distinction that likely varies depending upon the 
scenario. The Commission agrees an ad agency should not have to monitor 
an influencer for decades based upon a single gift. A fourth commenter 
objected to the rewritten example, saying it had been weakened by 
adding language that a disclosure was necessary only if a significant 
proportion of viewers are likely unaware that the influencer received 
the lathe free of charge.\148\ The Commission disagrees it is weakening 
the example. The additional language is a clarification consistent with 
the law and the Commission is changing a ``significant proportion'' to 
a

[[Page 48102]]

``significant minority,'' which is the language in the Commission's 
Deception Statement.\149\
---------------------------------------------------------------------------

    \145\ BBB NATIONAL PROGRAMS at 22.
    \146\ AAAA at 11.
    \147\ ANA at 16. That third commenter also asked the Commission 
``what constitutes a `significant' portion of an audience,'' ANA at 
15-16, an issue addressed above. See supra n. 119.
    \148\ Consumer Reports at 10.
    \149\ FTC Statement on Deception, 103 F.T.C. 174, 177 n.20 
(1984) (appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)).
---------------------------------------------------------------------------

    New Example 8 addresses endorsements by employees. It says the 
employer described in the example can limit its own liability for such 
endorsements by engaging in appropriate training of employees and, if 
the employer has directed such endorsements or otherwise has reason to 
know about them, by monitoring them and taking other steps to ensure 
compliance. One commenter asked whether the guidance regarding 
employees applies to all employers, including large retailers who don't 
manufacture the products they sell, and said it would be unreasonable 
to expect an employer to review posts by thousands or millions of 
employees.\150\ The Commission notes the connection between a retailer 
and its employees may be relevant to readers of the employees' reviews 
even when the reviews are of products the retailer sells but did not 
manufacture. As explained in the example, an employer would not have to 
monitor the reviews or other endorsements of employees unless the 
employer solicits the endorsements or otherwise has reason to know 
about them. Another commenter asked the Commission to rewrite the last 
sentence of the example to demonstrate the disclosure requirement does 
not change depending on the platform.\151\ The Commission is adopting 
the commenter's proposed language.
---------------------------------------------------------------------------

    \150\ RILA at 6-7.
    \151\ ANA at 16.
---------------------------------------------------------------------------

    New Example 10 says the use of an environmental seal of approval 
from a non-profit, third-party association that charges manufacturers a 
reasonable fee for the evaluation of their products does not 
necessitate a disclosure regarding the fee. One commenter asked about 
the relevance of the third party being a ``non-profit.'' \152\ The fact 
the certifying entity is a non-profit might make it less likely the 
decision to award the seal of certification was impacted by payment. 
Three other commenters appeared to support the example,\153\ and one of 
them suggested additional examples involving third-party seals or 
awards.\154\ The Commission is adding new Example 14 illustrating a 
scenario in which a testing company has a relationship with the company 
that commissions an analysis, such that a disclosure of the 
relationship is necessary.
---------------------------------------------------------------------------

    \152\ Id. at 16.
    \153\ BBB NATIONAL PROGRAMS at 22, Consumer Reports at 10, NAIMA 
at 6.
    \154\ BBB NATIONAL PROGRAMS at 22.
---------------------------------------------------------------------------

    In new Example 11, the Commission discusses a blogger who writes 
product reviews and receives ``a small portion of the sale'' through 
paid affiliate links. The example says the reviews should clearly and 
conspicuously disclose the compensation. Two commenters supported the 
example \155\ and a third commenter said the Commission should not 
state that the blogger receives a ``small'' portion of the sale unless 
it clarifies whether it is trying to communicate something about the 
nature or quantity of the compensation for purposes of finding 
``materiality.'' \156\ The Commission is striking the word ``small'' 
from the example. One of the commenters supporting the example asked 
the Commission to distinguish paid affiliate links from a display ad 
for a product appearing on the same page as an article reviewing the 
product.\157\ Although the Commission does not consider a display ad 
appearing on the same page as a review to be inherently deceptive, it 
does not consider the issue sufficiently related to the example to add 
it to the Guides.
---------------------------------------------------------------------------

    \155\ Consumer Reports at 10, NAIMA at 6.
    \156\ ANA at 16.
    \157\ N/MA at 3.
---------------------------------------------------------------------------

    New Example 12 involves a podcast host beginning a podcast by 
reading what is obviously a commercial. The example states the host 
need not make a disclosure because, even without a statement 
identifying the advertiser as a sponsor, listeners would likely still 
expect the podcaster was compensated. Five commenters supported the 
example.\158\ The example continues by stating the ad might communicate 
the host is expressing their own views, in which case the host would 
need to hold the views expressed.
---------------------------------------------------------------------------

    \158\ BBB NATIONAL PROGRAMS at 23, Consumer Reports at 10, 
InfluenceLogic at 2, NAIMA at 6, N/MA at 2.
---------------------------------------------------------------------------

    Example 12 also states that, if the host mentions the product in a 
social media post, the fact no disclosure was required in the podcast 
is not relevant to whether one is needed in the post. One commenter 
said whether a material connection disclosure is required is a fact-
specific analysis; the Commission agrees.\159\
---------------------------------------------------------------------------

    \159\ ANA 17.
---------------------------------------------------------------------------

G. Section 255.6 Endorsements Directed to Children

    New Sec.  255.6 says endorsements in advertisements directed to 
children may be of special concern because of the character of the 
audience; practices that would not ordinarily be questioned in ads 
directed to adults might be questioned when directed to children. Three 
comments supported this new section,\160\ with one of them suggesting 
the section be supplemented with specific examples.\161\ One commenter 
said the section was inadequate,\162\ while another urged the 
Commission to issue guidance that addresses in greater detail which 
techniques and practices are impermissible,\163\ and yet another asked 
the Commission to ban targeted and influencer advertising to children 
and teens.\164\ A different commenter was concerned that ``any new 
standards for children may impose duplicative material disclosure 
requirements for ads'' and suggested the Commission defer to the Better 
Business Bureau's Children's Advertising Review Unit (``CARU'').\165\ 
Finally, a commenter said the new section does not add any incremental 
benefit within the context of the Guides and, when appropriate, the 
Commission can provide additional guidance to marketers through other 
avenues, such as a report and other business guidance.\166\
---------------------------------------------------------------------------

    \160\ BBB NATIONAL PROGRAMS at 24, CCIA at 4-5, Generation 
Patient at 3.
    \161\ BBB NATIONAL PROGRAMS at 24.
    \162\ TINA.org at 9-10.
    \163\ Fairplay at 1.
    \164\ Common Sense at 1, 10.
    \165\ AAAA at 12-13.
    \166\ ANA at 16-17.
---------------------------------------------------------------------------

    The Commission continues to believe new Sec.  255.6 is helpful in 
establishing a general principle and does not impose duplicative 
requirements on marketers. The types of specific guidance that appear 
to be desired involve the wording, appearance, and placement of 
disclosures of material connection in various contexts. As discussed 
above, the Commission does not believe that specifics of disclosures of 
material connections should be addressed in the Guides themselves. 
Research on children's cognitive development suggests disclosures will 
not work for younger children. Commission staff recently held an event 
to learn more about advertising to children in digital media, including 
endorsements directed to children, and is exploring next steps.

List of Subjects in 16 CFR Part 255

    Advertising, Consumer protection, Trade practices.


0
For reasons stated in the preamble, the Federal Trade Commission 
revises 16 CFR part 255 of the Code of Federal Regulations to read as 
follows:

PART 255--GUIDES CONCERNING USE OF ENDORSEMENTS AND TESTIMONIALS IN 
ADVERTISING

Sec.

[[Page 48103]]

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.
255.6 Endorsements directed to children.

    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. 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 examples in each section apply the principles of 
that section to particular factual scenarios but do not address every 
possible issue that the facts or principles might implicate. Nor do the 
Guides purport to cover every possible use of endorsements in 
advertising.\1\ Whether a particular endorsement or testimonial is 
deceptive will depend on the specific factual circumstances of the 
advertisement at issue.
---------------------------------------------------------------------------

    \1\ Staff business guidance applying section 5 of the FTC Act to 
endorsements and testimonials in advertising is available on the FTC 
website. Such staff guidance addresses details not covered in these 
Guides and is updated periodically but is not approved by or binding 
upon the Commission.
---------------------------------------------------------------------------

    (b) For purposes of this part, an ``endorsement'' means any 
advertising, marketing, or promotional message for a product 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. Verbal statements, tags in social 
media posts, demonstrations, depictions of the name, signature, 
likeness or other identifying personal characteristics of an 
individual, and the name or seal of an organization can be 
endorsements. The party whose opinions, beliefs, findings, or 
experience the message appears to reflect will be called the 
``endorser'' and could be or appear to 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, brand, 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.
    (f) For purposes of this part, ``clear and conspicuous'' means that 
a disclosure is difficult to miss (i.e., easily noticeable) and easily 
understandable by ordinary consumers. If a communication's 
representation necessitating a disclosure is made through visual means, 
the disclosure should be made in at least the communication's visual 
portion; if the representation is made through audible means, the 
disclosure should be made in at least the communication's audible 
portion; and if the representation is made through both visual and 
audible means, the disclosure should be made in the communication's 
visual and audible portions. A disclosure presented simultaneously in 
both the visual and audible portions of a communication is more likely 
to be clear and conspicuous. A visual disclosure, by its size, 
contrast, location, the length of time it appears, and other 
characteristics, should stand out from any accompanying text or other 
visual elements so that it is easily noticed, read, and understood. An 
audible disclosure should be delivered in a volume, speed, and cadence 
sufficient for ordinary consumers to easily hear and understand it. In 
any communication using an interactive electronic medium, such as 
social media or the internet, the disclosure should be unavoidable. The 
disclosure should not be contradicted or mitigated by, or inconsistent 
with, anything else in the communication. When an endorsement targets a 
specific audience, such as older adults, ``ordinary consumers'' 
includes members of that group.
    (g) Examples:
    (1) Example 1. A film critic's review of a movie is excerpted in an 
advertisement placed by the film's producer. The critic's review is not 
an endorsement, but when the excerpt from the review is used in the 
producer's advertisement, the excerpt becomes an endorsement. Readers 
would view it as a statement of the critic's own opinions and not those 
of the producer. If the excerpt alters or quotes from the text of the 
review in a way that does not fairly reflect its substance, the 
advertisement would be deceptive because it distorts the endorser's 
opinion. (See Sec.  255.1(b))
    (2) Example 2. A television commercial depicts two unidentified 
shoppers in a supermarket buying a laundry detergent. One comments to 
the other how clean the advertised brand makes the shopper's clothes. 
The other shopper then replies, ``I will try it because I have not been 
fully satisfied with my own brand.'' This obviously fictional 
dramatization would not be an endorsement.
    (3) Example 3. In an advertisement for a pain remedy, an announcer 
unfamiliar to consumers except as a spokesperson for the advertising 
drug company praises the drug's ability to deliver fast and lasting 
pain relief. The spokesperson does not purport to speak from personal 
experience, nor on the basis of their 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.
    (4) 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. Many 
consumers are likely to believe this message reflects the driver's 
personal views, even if the driver does not say so, because consumers 
recognize the speaker primarily as a racing driver and not merely as a 
product spokesperson. Accordingly, many consumers would likely believe 
the driver would not speak for an automotive product without actually 
believing in the product and having personal knowledge sufficient to 
form the beliefs expressed. The likely attribution of these beliefs to 
the driver makes this message an endorsement under the Guides.
    (5) Example 5. (i) A television advertisement for a brand of golf 
balls includes a video of a prominent and well-recognized professional 
golfer practicing numerous drives off the tee. The video would be an 
endorsement even though the golfer makes no verbal statement in the 
advertisement.
    (ii) The golfer is also hired to post the video to their social 
media account. The paid post is an endorsement if viewers

[[Page 48104]]

can readily identify the golf ball brand, either because it is apparent 
from the video or because it is tagged or otherwise mentioned in the 
post.
    (6) Example 6. (i) An infomercial for a home fitness system is 
hosted by a well-known actor. During the infomercial, the actor 
demonstrates the machine and states, ``This is the most effective and 
easy-to-use home exercise machine that I have ever tried.'' Even if the 
actor is reading from a script, the statement would be an endorsement, 
because consumers are likely to believe it reflects the actor's 
personal views.
    (ii) Assume that, rather than speaking about their experience with 
or opinion of the machine, the actor says that the machine was designed 
by exercise physiologists at a leading university, that it isolates 
each of five major muscle groups, and that it is meant to be used for 
fifteen minutes a day. After demonstrating various exercises using the 
machine, the actor finally says how much the machine costs and how to 
order it. As the actor does not say or do anything during the 
infomercial that would lead viewers to believe that the actor is 
expressing their own views about the machine, there is no endorsement.
    (7) Example 7. (i) A consumer who regularly purchases a particular 
brand of dog food decides one day to purchase a new, more expensive 
brand made by the same manufacturer with their own money. The purchaser 
posts to their social media account that the change in diet has made 
their dog's fur noticeably softer and shinier, and that in their 
opinion, the new dog food definitely is worth the extra money. Because 
the consumer has no connection to the manufacturer beyond being an 
ordinary purchaser, their message cannot be attributed to the 
manufacturer and the post would not be deemed an endorsement under the 
Guides. The same would be true if the purchaser writes a consumer 
product review on an independent review website. But, if the consumer 
submits the review to the review section of the manufacturer's website 
and the manufacturer chooses to highlight the review on the homepage of 
its website, then the review as featured is an endorsement even though 
there is no connection between the consumer and the manufacturer.
    (ii) Assume that rather than purchase the dog food with their own 
money, the consumer receives it for free because the store routinely 
tracks purchases and the dog food manufacturer arranged for the store 
to provide a coupon for a free trial bag of its new brand to all 
purchasers of its existing brand. The manufacturer does not ask coupon 
recipients for product reviews and recipients likely would not assume 
that the manufacturer expects them to post reviews. The consumer's post 
would not be deemed an endorsement under the Guides because this 
unsolicited review cannot be attributed to the manufacturer.
    (iii) Assume now that the consumer joins a marketing program under 
which participants agree to periodically receive free products from 
various manufacturers and write reviews of them. If the consumer 
receives a free bag of the new dog food through this program, their 
positive review would be considered an endorsement under the Guides 
because of their connection to the manufacturer through the marketing 
program.
    (iv) Assume that the consumer is the owner of a ``dog influencer'' 
(a dog with a social media account and a large number of followers). If 
the manufacturer sends the consumer coupons for a year's worth of dog 
food and asks the consumer to feature the brand in their dog's social 
media feed, any resulting posts that feature the brand would be 
considered endorsements even though the owner could have chosen not to 
endorse the product.
    (8) Example 8. A college student, who has earned a reputation as an 
excellent video game player, live streams their game play. The 
developer of a new video game pays the student to play and live stream 
its new game. The student plays the game and appears to enjoy it. Even 
though the college student does not expressly recommend the game, the 
game play is considered an endorsement because the apparent enjoyment 
is implicitly a recommendation.
    (9) Example 9. (i) An influencer who is paid to endorse a vitamin 
product in their social media posts discloses their connection to the 
product's manufacturer only on the profile pages of their social media 
accounts. The disclosure is not clear and conspicuous because people 
seeing their paid posts could easily miss the disclosure.
    (ii) Assume now that the influencer discloses their connection to 
the manufacturer but that, in order to see the disclosures, consumers 
have to click on a link in the posts labeled simply ``more.'' If the 
endorsement is visible without having to click on the link labeled 
``more,'' but the disclosure is not visible without doing so, then the 
disclosure is not unavoidable and thus is not clear and conspicuous.
    (iii) Assume now that the influencer relies solely upon a social 
media platform's built-in disclosure tool for one of these posts. The 
disclosure appears in small white text, it is set against the light 
background of the image that the influencer posted, it competes with 
unrelated text that the influencer superimposed on the image, and the 
post appears for only five seconds. The disclosure is easy to miss and 
thus not clear and conspicuous.
    (10) Example 10. A television advertisement promotes a smartphone 
app that purportedly halts cognitive decline. The ad presents multiple 
endorsements by older senior citizens who are represented as actual 
consumers who used the app. The advertisement discloses via both audio 
and visual means that the persons featured are actors. Because the 
advertisement is targeted at older consumers, whether the disclosure is 
clear and conspicuous will be evaluated from the perspective of older 
consumers, including those with diminished auditory, visual, or 
cognitive processing abilities.
    (11) Example 11. (i) A social media advertisement promoting a 
cholesterol-lowering product features a testimonialist who says by how 
much their serum cholesterol went down. The claimed reduction greatly 
exceeds what is typically experienced by users of the product and a 
disclosure of typical results is required. The marketer has been able 
to identify from online data collection individuals with high 
cholesterol levels who speak a particular foreign language and are 
unable to understand English. It microtargets a foreign-language 
version of the ad to them, disclosing users' typical results only in 
English. The adequacy of the disclosure will be evaluated from the 
perspective of the microtargeted individuals, and the disclosure must 
be in the same language as the ad.
    (ii) Assume now that the ad has a disclosure that is clear and 
conspicuous when viewed on a computer browser but that it is not clear 
and conspicuous when the ad is rendered on a smartphone. Because some 
consumers will view the ad on their smartphones, the disclosure is 
inadequate.
    (12) Example 12. An exterminator purchases fake negative reviews of 
competing exterminators. A paid or otherwise incentivized negative 
statement about a competitor's service is not an endorsement, as that 
term is used in the Guides. Nevertheless, such statements, e.g., a paid 
negative review of a competing product, can be deceptive in violation 
of section 5. (See Sec.  255.2.(e)(4)(v) regarding the purchase of a 
fake positive review for a product.) Fake positive reviews that are 
used to promote a product are ``endorsements.''

[[Page 48105]]

    (13) Example 13. A motivational speaker buys fake social media 
followers to impress potential clients. The use by endorsers of fake 
indicators of social media influence, such as fake social media 
followers, is not itself an endorsement issue. The Commission notes, 
however, that it is a deceptive practice for users of social media 
platforms to purchase or create indicators of social media influence 
and then use them to misrepresent such influence to potential clients, 
purchasers, investors, partners, or employees or to anyone else for a 
commercial purpose. It is also a deceptive practice to sell or 
distribute such indicators to such users.


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.  255.2(a) and 
(b) regarding substantiation of representations conveyed by consumer 
endorsements.)
    (b) An advertisement need not present an endorser's message in the 
exact words of the endorser unless the advertisement represents that it 
is presenting the endorser's exact words, such as through the use of 
quotation marks. 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 about 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 
paragraph (b) of this section regarding the ``good reason to believe'' 
requirement.)
    (d) Advertisers are subject to liability for misleading or 
unsubstantiated statements made through endorsements or for failing to 
disclose unexpected material connections between themselves and their 
endorsers. (See Sec.  255.5.) An advertiser may be liable for a 
deceptive endorsement even when the endorser is not liable. Advertisers 
should:
    (1) Provide guidance to their endorsers on the need to ensure that 
their statements are not misleading and to disclose unexpected material 
connections;
    (2) Monitor their endorsers' compliance; and
    (3) Take action sufficient to remedy non-compliance and prevent 
future non-compliance. While not a safe harbor, good faith and 
effective guidance, monitoring, and remedial action should reduce the 
incidence of deceptive claims and reduce an advertiser's odds of facing 
a Commission enforcement action.
    (e) Endorsers may be liable for statements made in the course of 
their endorsements, such as when an endorser makes a representation 
that the endorser knows or should know to be deceptive, including when 
an endorser falsely represents that they personally used a product. 
Also, an endorser who is not an expert may be liable for misleading or 
unsubstantiated representations regarding a product's performance or 
effectiveness, such as when the representations are inconsistent with 
the endorser's personal experience or were not made or approved by the 
advertiser and go beyond the scope of the endorser's personal 
experience. (For the responsibilities of an endorser who is an expert, 
see Sec.  255.3.) Endorsers may also be liable for failing to disclose 
unexpected material connections between themselves and an advertiser, 
such as when an endorser creates and disseminates endorsements without 
such disclosures.
    (f) Advertising agencies, public relations firms, review brokers, 
reputation management companies, and other similar intermediaries may 
be liable for their roles in creating or disseminating endorsements 
containing representations that they know or should know are deceptive. 
They may also be liable for their roles with respect to endorsements 
that fail to disclose unexpected material connections, whether by 
disseminating advertisements without necessary disclosures or by hiring 
and directing endorsers who fail to make necessary disclosures.
    (g) The use of an endorsement with the image or likeness of a 
person other than the actual endorser is deceptive if it misrepresents 
a material attribute of the endorser.
    (h) Examples:
    (1) Example 1. (i) A building contractor states in an advertisement 
disseminated by a paint manufacturer, ``I use XYZ exterior house paint 
because of its remarkable quick drying properties and durability.'' 
This endorsement must comply with the pertinent requirements of Sec.  
255.3. 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 use the paint as reformulated and to subscribe to the views 
presented previously.
    (ii) Assume that, before the reformulation, the contractor had 
posted an endorsement of the paint to their social media account. Even 
if the contractor would not use or recommend the reformulated paint, 
there is no obligation for the contractor or the manufacturer to modify 
or delete a historic post containing the endorsement as long as the 
date of that post is clear and conspicuous to viewers. If the 
contractor reposts or the advertiser shares the contractor's original 
endorsement after the reformulation, consumers would expect that the 
contractor holds the views expressed in the original post with respect 
to the reformulated product and the advertiser would need to confirm 
that with the contractor.
    (2) Example 2. In a radio advertisement played during commercial 
breaks, a well-known DJ talks about how much they enjoy making coffee 
with a particular coffee maker in the morning. The DJ's comments likely 
communicate that they regularly use the coffee maker. If, instead, they 
used it only during a demonstration by its manufacturer, the ad would 
be deceptive.
    (3) Example 3. (i) A dermatologist is a paid advisor to a 
pharmaceutical company and is asked by the company to post about its 
products on their professional social media account. The dermatologist 
posts that the company's newest acne treatment product is ``clinically 
proven'' to work. Before giving the endorsement, the dermatologist 
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. Given 
their medical expertise, the dermatologist should have recognized

[[Page 48106]]

the study's flaws and is subject to liability for their false 
statements made in the advertisement. The advertiser is also liable for 
the misrepresentation made through the endorsement. (See Sec.  255.3 
regarding the product evaluation that an expert endorser must conduct.) 
Even if the study was sufficient to establish the product's proven 
efficacy, the pharmaceutical company and the dermatologist are both 
potentially liable if the endorser fails to disclose their relationship 
to the company. (See Sec.  255.5 regarding the disclosure of unexpected 
material connections.)
    (ii) Assume that the expert had asked the pharmaceutical company 
for the evidence supporting its claims and there were no apparent 
design or execution flaws in the study shown to the expert, but that 
the pharmaceutical company had withheld a larger and better controlled, 
non-published proprietary study of the acne treatment that failed to 
find any statistically significant improvement in acne. The expert's 
``clinically proven'' to work claim would be deceptive and the company 
would be liable for the claim, but because the dermatologist did not 
have a reason to know that the claim was deceptive, the expert would 
not be liable.
    (4) Example 4. A well-known celebrity appears in an infomercial for 
a hot air roaster that purportedly cooks a chicken perfectly in twenty 
minutes. During the shooting of the infomercial, the celebrity watches 
five attempts to cook chickens using the roaster. In each attempt, the 
chicken is undercooked after twenty minutes and requires forty-five 
minutes of cooking time. In the commercial, the celebrity places an 
uncooked chicken in the roaster. The celebrity then takes from a second 
roaster what appears to be a perfectly cooked chicken, tastes the 
chicken, and says that if you want perfect chicken every time, in just 
twenty minutes, this is the product you need. A significant percentage 
of consumers are likely to believe the statement represents the 
celebrity's own view and experience even though the celebrity is 
reading from a script. Because the celebrity knows that their statement 
is untrue, the endorser is subject to liability. The advertiser is also 
liable for misrepresentations made through the endorsement.
    (5) Example 5. A skin care products advertiser hires an influencer 
to promote its products on the influencer's social media account. The 
advertiser requests that the influencer try a new body lotion and post 
a video review of it. The advertiser does not provide the influencer 
with any materials stating that the lotion cures skin conditions and 
the influencer does not ask the advertiser if it does. However, 
believing that the lotion cleared up their eczema, the influencer says 
in their review, ``This lotion cures eczema. All of my followers 
suffering from eczema should use it.'' The influencer, who did not 
limit their statements to their personal experience using the product 
and did not have a reasonable basis for their claim that the lotion 
cures eczema, is subject to liability for the misleading or 
unsubstantiated representation in the endorsement. If the advertiser 
lacked adequate substantiation for the implied claims that the lotion 
cures eczema, it would be liable regardless of the liability of the 
endorser. The influencer and the advertiser may also be liable if the 
influencer fails to disclose clearly and conspicuously being paid for 
the endorsement. (See Sec.  255.5.) In order to limit its potential 
liability, the advertiser should provide guidance to its influencers 
concerning the need to ensure that statements they make are truthful 
and substantiated and the need to disclose unexpected material 
connections and take other steps to discourage or prevent non-
compliance. The advertiser should also monitor its influencers' 
compliance and take steps necessary to remove and halt the continued 
publication of deceptive representations when they are discovered and 
to ensure the disclosure of unexpected material connections. (See 
paragraph (d) of this section and Sec.  255.5.)
    (6) Example 6. (i) The website for an acne treatment features 
accurate testimonials of users who say that the product improved their 
acne quickly and with no side effects. Instead of using images of the 
actual endorsers, the website accompanies the testimonials with stock 
photos the advertiser purchased of individuals with near perfect skin. 
The images misrepresent the improvements to the endorsers' complexions.
    (ii) The same website also sells QRS Weight-Loss shakes and 
features a truthful testimonial from an individual who says, ``I lost 
50 pounds by just drinking the shakes.'' Instead of accompanying the 
testimonial with a picture of the actual endorser, who went from 300 
pounds to 250 pounds, the website shows a picture of an individual who 
appears to weigh about 100 pounds. By suggesting that QRS Weight-Loss 
shakes caused the endorser to lose one-third of their original body 
weight (going from 150 pounds to 100 pounds), the image misrepresents 
the product's effectiveness. Even if it is accompanied by a picture of 
the actual endorser, the testimonial could still communicate a 
deceptive typicality claim.
    (7) Example 7. A learn-to-read program disseminates a sponsored 
social media post by a parent saying that the program helped their 
child learn to read. The picture accompanying the post is not of the 
endorser and their child. The testimonial is from the parent of a 7-
year-old, but the post shows an image of a child who appears to be only 
4 years old. By suggesting that the program taught a 4-year-old to 
read, the image misrepresents the effectiveness of the program.


Sec.  255.2  Consumer endorsements.

    (a) An advertisement employing endorsements by one or more 
consumers about the performance of an advertised product will be 
interpreted as representing that the product 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 
express and implied 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 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. The disclosure of the generally expected performance 
should be presented in a manner that does not itself misrepresent what 
consumers can expect. To be effective, such disclosure must alter the 
net impression of the advertisement so that it is not misleading.
    (c) Advertisements presenting endorsements by what are represented, 
expressly or by implication, to be ``actual consumers'' should utilize

[[Page 48107]]

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.
    (d) In procuring, suppressing, boosting, organizing, publishing, 
upvoting, downvoting, reporting, or editing consumer reviews of their 
products, advertisers should not take actions that have the effect of 
distorting or otherwise misrepresenting what consumers think of their 
products, regardless of whether the reviews are considered endorsements 
under the Guides.
    (e) Examples:
    (1) Example 1. (i) A web page 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.
    (ii) The web page 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.
    (2) Example 2. (i) 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 heat pump can generally 
expect. The advertiser does not have substantiation for that 
representation because, in fact, fewer 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.
    (A) In another context, 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. 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.
    (B) The advertiser should clearly and conspicuously disclose the 
generally expected savings and have 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.''
    (ii) Disclosures like those in this Example 2, specifically 
paragraph (e)(2)(i)(B) of this section, could still be misleading, 
however, if they only apply to limited circumstances that are not 
described in the advertisement. For example, if the advertisement does 
not limit its claims by geography, it would be misleading if the 
disclosure of expected results in a nationally disseminated 
advertisement was based on the experiences of customers in a southern 
climate and the experiences of those customers was much better than 
could be expected by heat pump users in a northern climate.
    (3) Example 3. An advertisement for a cholesterol-lowering product 
features individuals who claim that their serum cholesterol went down 
by 120 points and 130 points, respectively; the ad does not mention the 
endorsers 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 competent and reliable scientific 
evidence that the product can produce the specific results claimed by 
the endorsers (i.e., a 130-point drop in serum cholesterol without any 
lifestyle changes).
    (4) Example 4. (i) An advertisement for a weight-loss product 
features an endorsement by a formerly obese person who says, ``Every 
day, I drank 2 QRS Weight-Loss shakes, ate only 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 endorser's experience, and such a result is 
within the range that would be generally experienced by an extremely 
overweight individual who consumed QRS Weight-Loss shakes, only ate raw 
vegetables, and exercised as the endorser did. Because the endorser 
clearly describes the limited and truly exceptional circumstances under 
which they achieved the claimed results, the ad is not likely to convey 
that consumers who weigh substantially less or use QRS Weight-Loss 
under less extreme circumstances will lose 110 pounds in six months. If 
the advertisement simply says that the endorser lost 110 pounds in six 
months using QRS Weight-Loss together with diet and exercise, however, 
this description would not adequately alert consumers to the truly 
remarkable circumstances leading to the endorser's weight loss. The 
advertiser must have substantiation, however, for any performance 
claims conveyed by the endorsement (e.g., that QRS Weight-Loss is an 
effective weight-loss product and that the endorser's weight loss was 
not caused solely by their dietary restrictions and exercise regimen).
    (ii) If, in the alternative, the advertisement simply features 
``before'' and ``after'' pictures of a woman who says, ``I lost 50 
pounds in 6 months with QRS Weight-Loss,'' the ad is likely to convey 
that the endorser's experience is representative of what consumers will 
generally achieve. Therefore, if consumers cannot generally expect to 
achieve such results, the ad would be deceptive. Instead, the ad should 
clearly and conspicuously disclose what they can expect to lose in the 
depicted circumstances (e.g., ``women who use QRS Weight-Loss for six 
months typically lose 15 pounds''). A disclosure such as ``Average 
weight loss is 1-2 pounds per week'' is inadequate because it does not 
effectively communicate the expected weight loss over six months. 
Furthermore, that disclosure likely implies that weight loss continues 
at that rate over six months, which would not be true if, for

[[Page 48108]]

example, the average weekly weight loss over six months is .57 pounds.
    (iii) If the ad features the same pictures but the testimonialist 
simply says, ``I lost 50 pounds with QRS Weight-Loss,'' and QRS Weight-
Loss users generally do not lose 50 pounds, the ad should disclose what 
results they do generally achieve (e.g., ``women who use QRS Weight-
Loss lose 15 pounds on average''). A disclosure such as ``most women 
who use QRS Weight-Loss lose between 10 and 50 pounds'' is inadequate 
because the range specified is so broad that it does not sufficiently 
communicate what users can generally expect.
    (iv) Assume that a QRS Weight-Loss advertisement contains a 
disclosure of generally expected results that is based upon the mean 
weight loss of users. If the mean is substantially affected by 
outliers, then the disclosure would be misleading. For example, if the 
mean weight loss is 15 pounds, but the median weight loss is 8 pounds, 
it would be misleading to say that the average weight loss was 15 
pounds. In such cases, the disclosure's use of median weight loss 
instead could help avoid deception, e.g., ``most users lose 8 pounds'' 
or ``the typical user loses 8 pounds.''
    (v) Assume that QRS Weight-Loss's manufacturer procured a fake 
consumer review, reading ``I lost 50 pounds with QRS Weight-Loss,'' and 
had it published on a third-party review website. This endorsement is 
deceptive because it was not written by a bona fide user of the product 
(see Sec.  255.1(c)) and because it does not reflect the honest 
opinions, findings, beliefs, or experience of the endorser (see Sec.  
255.1(a)). Moreover, the manufacturer would need competent and reliable 
scientific evidence that QRS Weight-Loss is capable of causing 50-pound 
weight loss.
    (vi) Assume that QRS Weight-Loss is a diet and exercise program and 
a person appearing in a QRS Weight-Loss ad says, ``I lost 50 pounds in 
6 months with QRS Weight-Loss.'' Very few QRS Weight-Loss users lose 50 
pounds in 6 months and the ad truthfully discloses, ``The typical 
weight loss of QRS Weight-Loss users who stick with the program for 6 
months is 35 pounds.'' In fact, only one-fifth of those who start the 
QRS Weight-Loss program stick with it for 6 months. The disclosure is 
inadequate because it does not communicate what the typical outcome is 
for users who start the program. In other words, even with the 
disclosure, the ad does not communicate what people who join the QRS 
Weight-Loss program can generally expect.
    (vii) Assume that QRS Weight-Loss's manufacturer forwards reviews 
for its product to a third-party review website. If it forwards only 
favorable reviews or omits unfavorable reviews, it is engaging in a 
misleading practice.
    (5) 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 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.
    (6) Example 6. An advertisement appears to show a ``hidden camera'' 
situation in a crowded cafeteria at breakfast time. A spokesperson for 
the advertiser asks a series of patrons of the cafeteria for their 
spontaneous, honest opinions of the advertiser's recently introduced 
breakfast cereal. Even though none of the patrons is specifically 
identified during the advertisement, the net impression conveyed to 
consumers may well be that these are actual customers. If actors have 
been employed, this fact should be clearly and conspicuously disclosed.
    (7) Example 7. (i) 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 the consumers' statements would be understood to be the 
subjective opinions of only three people, this advertisement is not 
likely to convey a typicality message.
    (ii) 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 or post about it on social media, 
that arrangement should be clearly and conspicuously disclosed. (See 
Sec.  255.5.)
    (8) Example 8. (i) A camping goods retailer's website has various 
product pages. Each product page provides consumers with the 
opportunity to review the product and rate it on a five-star scale. 
Each such page displays the product's average star rating and a 
breakdown of the number of reviews with each star rating, followed by 
individual consumers' reviews and ratings. As such, the website is 
representing that it is providing an accurate reflection of the views 
of the purchasers who submitted product reviews to the website. If the 
retailer chose to suppress or otherwise not publish any reviews with 
fewer than four stars or reviews that contain negative sentiments, the 
product pages would be misleading as to purchasers' actual opinions of 
the products.
    (ii) If the retailer chose not to post reviews containing 
profanity, that would not be unfair or deceptive even if reviews 
containing profanity tend to be negative reviews. However, it would be 
misleading if the retailer blocked negative reviews containing 
profanity, but posted positive reviews containing profanity. It would 
be acceptable for the retailer to have a policy against posting reviews 
unrelated to the product at issue or related services, for example 
reviews complaining about the owner's policy positions. But it would be 
misleading if the retailer chose to filter reviews based on other 
factors that are only a pretext for filtering them based on negativity. 
Sellers are not required to display customer reviews that contain 
unlawful, harassing, abusive, obscene, vulgar, or sexually explicit 
content; the personal information or likeness of another person; 
content that is inappropriate with respect to race, gender, sexuality, 
or ethnicity; or reviews that the seller reasonably believes are fake, 
so long as the criteria for withholding reviews are applied uniformly 
to all reviews submitted. Neither are sellers required to display 
reviews that are unrelated to their products or services. A particular 
seller's customer service, delivery, returns, and exchanges are related 
to its products and services.
    (iii) Assume now that each product page starts with a glowing five-
star review that is labeled as ``the most helpful review.'' Labeling 
the review as the most helpful suggests it was voted most helpful by 
consumers visiting the website. If the initial review on each such page 
was selected by the retailer and was not selected as the most helpful 
review by other consumers, labeling it as the most helpful would be 
deceptive.
    (9) Example 9. A manufacturer offers to pay genuine purchasers $20 
each to write positive reviews of its products on third-party review 
websites. Such reviews are deceptive even if the payment is disclosed 
because their positive nature is required by, rather than being merely 
influenced by, the payment. If, however, the manufacturer

[[Page 48109]]

did not require the reviews to be positive and the reviewers understood 
that there were no negative consequences from writing negative reviews, 
a clear and conspicuous disclosure of the material connection would be 
appropriate. (See Example 6).
    (10) Example 10. (i) In an attempt to coerce them to delete their 
reviews, a manufacturer threatens consumers who post negative reviews 
of its products to third-party review websites, with physical threats, 
with the disclosure of embarrassing information, with baseless lawsuits 
(such as actions for defamation that challenge truthful speech or 
matters of opinion), or with lawsuits it actually does not intend to 
file. Such threats amount to an unfair or deceptive practice because 
other consumers would likely be deprived of information relevant to 
their decision to purchase or use the products, or be misled as to 
purchasers' actual opinions of the product.\2\
---------------------------------------------------------------------------

    \2\ The Consumer Review Fairness Act makes it illegal for 
companies to include standardized contract provisions that threaten 
or penalize people for posting honest reviews. 15 U.S.C. 45b.
---------------------------------------------------------------------------

    (ii) Assume now that one of the third-party review websites has a 
reporting mechanism that allows businesses to flag suspected fake 
reviews. The manufacturer routinely flags negative reviews of its 
products as fake without a reasonable basis for believing that they 
actually are fake, resulting in truthful reviews being removed from the 
website. This misuse of the reporting option is an unfair or deceptive 
practice.
    (11) Example 11. A marketer contacts recent online, mail-order, and 
in-store purchasers of its products and asks them to provide feedback 
to the marketer. The marketer then invites purchasers who give very 
positive feedback to post online reviews of the products on third-party 
websites. Less pleased and unhappy purchasers are simply thanked for 
their feedback. Such a practice may be an unfair or deceptive practice 
if it results in the posted reviews being substantially more positive 
than if the marketer had not engaged in the practice. If, in the 
alternative, the marketer had simply invited all recent purchasers to 
provide feedback on third-party websites, the solicitation would not 
have been unfair or deceptive, even if it had expressed its hope for 
positive reviews.


Sec.  255.3  Expert endorsements.

    (a) Whenever an advertisement represents, expressly 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 the endorser is represented as 
possessing with respect to the endorsement.
    (b) Although an expert may, in endorsing a product, take into 
account factors not within the endorser's expertise (such as taste or 
price), the endorsement must be supported by an actual exercise of the 
expertise that the expert is represented as possessing in evaluating 
product features or characteristics which are relevant to an ordinary 
consumer's use of or experience with the product. This evaluation must 
have included an examination or testing of the product at least as 
extensive as someone with the same degree of represented 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 to another 
product or other products, 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 the 
endorser is represented to be an 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(e) regarding the liability of endorsers.)
    (c) Examples:
    (1) 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 the endorser 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.
    (2) Example 2. An endorser of a hearing aid is simply referred to 
as a doctor during the course of an advertisement. The ad likely 
implies that the endorser has expertise in the area of hearing, as 
would be the case if the endorser is a medical doctor with substantial 
experience in audiology or a non-medical doctor with a Ph.D. or Au.D. 
in audiology. A doctor without substantial experience in the area of 
hearing might be able to endorse the product if the advertisement 
clearly and conspicuously discloses the nature and limits of the 
endorser's expertise.
    (3) 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 performance 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.
    (4) 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.
    (5) Example 5. A person who is identified as the president of a 
commercial ``home cleaning service'' states in a television 
advertisement for a particular brand of cleanser that the service uses 
that brand instead of its leading competitors because of its 
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' brands 
available to consumers, the service must, in fact, have such 
experience, and have determined, based on its expertise, that the 
endorsed product's cleaning ability is at least equal (or superior, if 
such is the net impression conveyed by

[[Page 48110]]

the advertisement) to that of the leading competitors' products 
available to consumers. 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.
    (6) 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 likely be deceptive because those 
materials are not the type of scientific evidence that others with the 
represented degree of expertise would consider adequate to support this 
conclusion about the product's safety and efficacy. Under such 
circumstances, both the advertiser and the doctor would be liable for 
the doctor's misleading representation. (See Sec.  255.1(d) and (e))


Sec.  255.4  Endorsements by organizations.

    (a) 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, 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(e) regarding the liability of endorsers.)
    (b) Examples:
    (1) Example 1. A mattress manufacturer 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.
    (2) Example 2. A trampoline manufacturer sets up and operates what 
appears to be a trampoline review website operated by an independent 
trampoline institute. The site reviews the manufacturer's trampolines, 
as well as those of competing manufacturers. Because the website 
falsely appears to be independent, it is deceptive. (See Sec.  255.5.)
    (3) Example 3. (i) A third-party company operates a wireless 
headphone review website that provides rankings of different 
manufacturers' wireless headphones from most recommended to least 
recommended. The website operator accepts money from manufacturers in 
exchange for higher rankings of their products. Regardless of whether 
the website makes express claims of objectivity or independence, such 
paid-for rankings are deceptive and the website operator is liable for 
the deception. A headphone manufacturer who pays for a higher ranking 
on the website may also be held liable for the deception. A disclosure 
that the website operator receives payments from headphone 
manufacturers would be inadequate because the payments actually 
determine the headphones' relative rankings. If, however, the review 
website does not take payments for higher rankings, but receives 
payments from some of the headphone manufacturers, such as for 
affiliate link referrals, it should clearly and conspicuously disclose 
that it receives such payments. (See Sec.  255.5(k)(11))
    (ii) Assume that the headphone review website operator uses a 
ranking methodology that results in higher rankings for products whose 
sellers have a relationship to the operator because of those 
relationships. The use of such a methodology is also misleading.


Sec.  255.5  Disclosure of material connections.

    (a) 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, and that connection is not 
reasonably expected by the audience, such connection must be disclosed 
clearly and conspicuously. Material connections can include a business, 
family, or personal relationship. They can include monetary payment or 
the provision of free or discounted products (including products 
unrelated to the endorsed product) to an endorser, regardless of 
whether the advertiser requires an endorsement in return. Material 
connections can also include other benefits to the endorser, such as 
early access to a product or the possibility of being paid, of winning 
a prize, or of appearing on television or in other media promotions. 
Some connections may be immaterial because they are too insignificant 
to affect the weight or credibility given to endorsements. A material 
connection needs to be disclosed when a significant minority of the 
audience for an endorsement does not understand or expect the 
connection. A disclosure of a material connection does not require the 
complete details of the connection, but it must clearly communicate the 
nature of the connection sufficiently for consumers to evaluate its 
significance.
    (b) Examples:
    (1) 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. Although the design and 
conduct of the research project are controlled by the outside research 
organization, the weight consumers place on the reported results could 
be materially affected by knowing that the advertiser had funded the 
project. Therefore, the advertiser's payment of expenses to the 
research organization should be disclosed in the advertisement.
    (2) Example 2. A film star endorses a particular food product in a 
television commercial. 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.
    (3) Example 3. (i) 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 the player's career and 
during this time the player has risen to their highest level ever in 
the rankings. The player responds by attributing that

[[Page 48111]]

improvement to seeing the ball better ever since having laser vision 
correction surgery at a specific identified clinic. The athlete 
continues talking about the ease of the procedure, the kindness of the 
clinic's doctors, the short recovery time, and now being able to engage 
in a variety of activities without glasses, including driving at night. 
The athlete does not disclose having a contractual relationship with 
the clinic that includes payment for speaking publicly about the 
surgery. Consumers might not realize that a celebrity discussing a 
medical procedure in a television interview has been 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 during the interview that the athlete 
has been engaged as a spokesperson for the clinic, this endorsement is 
likely to be deceptive. A disclosure during the show's closing credits 
would not be clear and conspicuous. Furthermore, if consumers are 
likely to take away from the interview that the athlete's experience is 
typical of those who undergo the same procedure at the clinic, the 
advertiser must have substantiation for that claim.
    (ii) Assume that the tennis player instead touts the results of the 
surgery--mentioning the clinic by name--in the player's social media 
post. Consumers might not realize that the athlete is a paid endorser, 
and because that information might affect the weight consumers give to 
the tennis player's endorsement, the relationship with the clinic 
should be disclosed--regardless of whether the clinic paid the athlete 
for that particular post. It should be disclosed even if the 
relationship involves no payments but only the tennis player getting 
the laser correction surgery for free or at a significantly reduced 
cost.
    (iii)(A) Assume that the clinic reposts the tennis player's social 
media post to its own social media account and that the player's 
original post either--
    (1) Did not have a clear and conspicuous disclosure, or
    (2) Had such a disclosure that does not appear clearly and 
conspicuously in the repost.
    (B) Given the nature of the endorsement (i.e., a personally created 
statement from the tennis player's social media account), the viewing 
audience of the clinic's social media account would likely reasonably 
not expect the tennis player to be compensated. The clinic should 
clearly and conspicuously disclose its relationship to the athlete in 
its repost.
    (iv) Assume that during the appearance on the television talk show, 
the tennis player is wearing clothes bearing the insignia of an 
athletic wear company with which the athlete also has an endorsement 
contract. Although this contract requires wearing the company's clothes 
not only on the court but also in public appearances, when possible, 
the athlete does not mention the clothes or the company during the 
appearance on the show. No disclosure is required because no 
representation is being made about the clothes in this context.
    (4) Example 4. (i) A television ad for an anti-snoring product 
features a physician who says, ``I have seen dozens of products come on 
the market over the years, and in my opinion, this is the best ever.'' 
Consumers would expect the physician to be reasonably compensated for 
appearing in the ad. Consumers are unlikely, however, to expect that an 
expert endorser like the physician receives a percentage of gross 
product sales or 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.
    (ii) Assume that the physician is instead paid to post about the 
product on social media. In that context, consumers might not expect 
that the physician was compensated and might be more likely than in a 
television ad to expect that the physician is expressing an 
independent, professional opinion. Accordingly, the post should clearly 
and conspicuously disclose the doctor's connection with the company.
    (5) Example 5. (i) In a television advertisement, an actual patron 
of a restaurant, who is neither known to the public nor presented as an 
expert, is shown seated at the counter. The diner is asked for a 
``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 television promotion of 
its new ``meat-alternative'' burger. A patron seeing such a sign might 
be more inclined to give a positive review of that item in order to 
appear on television. The advertisement should thus clearly and 
conspicuously inform viewers that the patrons on screen knew in advance 
that they might appear in a television advertisement because that 
information may materially affect the weight or credibility of the 
endorsement.
    (ii) Assume, in the alternative, that the advertiser had not posted 
the sign and that patrons asked for their opinions about the burger did 
not know or have reason to believe until after their response that they 
were being recorded for use in an advertisement. No disclosure is 
required here, even if patrons were also told, after the interview, 
that they would be paid for allowing the use of their opinions in 
advertising.
    (6) Example 6. (i) An infomercial producer wants to include 
consumer endorsements in an infomercial for an automotive additive 
product not yet on the market. The producer's staff selects several 
people who work as ``extras'' in commercials and asks them to use the 
product and report back, telling them that they will be paid a small 
amount if selected to endorse the product in the infomercial. Viewers 
would not expect that these ``consumer endorsers'' are actors who used 
the product in the hope of appearing in the commercial and receiving 
compensation. Because the advertisement fails to disclose these facts, 
it is deceptive.
    (ii) Assume that the additive's marketer wants to have more 
consumer reviews appear on its retail website, which sells a variety of 
its automotive products. The marketer recruits ordinary consumers to 
get a free product (e.g., a set of jumper cables or a portable air 
compressor for car tires) and a $30 payment in exchange for posting a 
consumer review of the free product on the marketer's website. The 
marketer makes clear and the reviewers understand that they are free to 
write negative reviews and that there are no negative consequences of 
doing so. Any resulting review that fails to clearly and conspicuously 
disclose the incentives provided to that reviewer is likely deceptive. 
When the resulting reviews must be positive or reviewers believe they 
might face negative consequences from posting negative reviews, a 
disclosure would be insufficient. (See Sec. Sec.  255.2(d) and (e)(9).) 
Even if adequate disclosures appear in each incentivized review, the 
practice could still be deceptive if the solicited reviews contain star 
ratings that are included in an average star rating for the product and 
including the incentivized reviews materially increases that average 
star rating. If such a material increase occurs, the marketer likely 
would need to provide a clear and conspicuous disclosure to people who 
see the average star rating.
    (7) Example 7. A woodworking influencer posts on-demand videos of

[[Page 48112]]

various projects. A tool manufacturer sends the influencer an expensive 
full-size lathe in the hope that the influencer would post about it. 
The woodworker uses the lathe for several products and comments 
favorably about it in videos. If a significant minority of viewers are 
likely unaware that the influencer received the lathe free of charge, 
the woodworker should clearly and conspicuously disclose receiving it 
for free, a fact that could affect the credibility that viewers attach 
to the endorsements. The manufacturer should advise the woodworker at 
the time it provides the lathe that this connection should be 
disclosed, and it should have reasonable procedures in place to monitor 
the influencer's postings for compliance and follow those procedures. 
(See Sec.  255.1(d).)
    (8) Example 8. An online community has a section dedicated to 
discussions of robotic products. Community members ask and answer 
questions and otherwise exchange information and opinions about robotic 
products and developments. Unbeknownst to this community, an employee 
of a leading home robot manufacturer has been posting messages on the 
discussion board promoting the manufacturer's new product. Knowledge of 
this poster's employment likely would affect the weight or credibility 
of the endorsements. Therefore, the poster should clearly and 
conspicuously disclose their relationship to the manufacturer. To limit 
its own liability for such posts, the employer should engage in 
appropriate training of employees. To the extent that the employer has 
directed such endorsements or otherwise has reason to know about them, 
it should also be monitoring them and taking other steps to ensure 
compliance. (See Sec.  255.1(d).) The disclosure requirements in this 
example would apply equally to employees posting their own reviews of 
the product on retail websites or review platforms.
    (9) Example 9. A college student signs up to be part of a program 
in which points are awarded each time a participant posts on social 
media about a particular advertiser's products. Participants can then 
exchange their points for prizes, such as concert tickets or 
electronics. These incentives would materially affect the weight or 
credibility of the college student's endorsements. They should be 
clearly and conspicuously disclosed, and the advertiser should take 
steps to ensure that these disclosures are being provided.
    (10) Example 10. Great Paper Company sells photocopy paper with 
packaging that has a seal of approval from the No Chlorine Products 
Association, a non-profit third-party association. Great Paper Company 
paid the No Chlorine Products Association a reasonable fee for the 
evaluation of its product and its manufacturing process. Consumers 
would reasonably expect that marketers have to pay for this kind of 
certification. Therefore, there is no unexpected material connection 
between the company and the association, and the use of the seal 
without disclosure of the fee paid to the association would not be 
deceptive.
    (11) Example 11. A coffee lover creates a blog that reviews coffee 
makers. The blogger writes the content independently of the marketers 
of the coffee makers but includes affiliate links to websites on which 
consumers can buy these products from their marketers. Whenever a 
consumer clicks on such a link and buys the product, the blogger 
receives a portion of the sale. Because knowledge of this compensation 
could affect the weight or credibility site visitors give to the 
blogger's reviews, the reviews should clearly and conspicuously 
disclose the compensation.
    (12) Example 12. (i) Near the beginning of a podcast, the host 
reads what is obviously a commercial for a product. Even without a 
statement identifying the advertiser as a sponsor, listeners would 
likely still expect that the podcaster was compensated, so there is no 
need for a disclosure of payment for the commercial. Depending upon the 
language of the commercial, however, the audience may believe that the 
host is expressing their own views in the commercial, in which case the 
host would need to hold the views expressed. (See Sec.  255.0(b).)
    (ii) Assume that the host also mentions the product in a social 
media post. The fact that the host did not have to make a disclosure in 
the podcast has no bearing on whether there has to be a disclosure in 
the social media post.
    (13) Example 13. An app developer gives a consumer a game app to 
review. The consumer clearly and conspicuously discloses in the review 
that they were given the app, which normally costs 99 cents, for free. 
That disclosure suggests that the consumer did not receive anything 
else for the review. If the app developer also gave the consumer $50 
for the review, the mere disclosure that the app was free would be 
inadequate.
    (14) Example 14. Speed Ways, an internet Service Provider, 
advertises that it has the ``Fastest ISP Service'' as determined by the 
``Data Speed Testing Company.'' If Speed Ways commissioned and paid for 
the analysis of its and competing services, it should clearly and 
conspicuously disclose its relationship to the testing company because 
the relationship would likely be material to consumers in evaluating 
the claim. If the ``Data Speed Testing Company'' is not a bona fide 
independent testing organization with expertise in judging ISP speeds 
or it did not conduct valid tests that supported the endorsement 
message, the endorsement would also be deceptive. (See Sec.  
255.3(c)(3))


Sec.  255.6  Endorsements directed to children.

    Endorsements in advertisements addressed to children may be of 
special concern because of the character of the audience. Practices 
that would not ordinarily be questioned in advertisements addressed to 
adults might be questioned in such cases.

    By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2023-14795 Filed 7-25-23; 8:45 am]
BILLING CODE 6750-01-P