On Notice: Continued Use of Endorsements

Persevering with our collection on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this submit considers the FTC’s assertion that it’s illegal below Part 5 of the FTC Act “for an advertiser to continue to advertise an endorsement unless the advertiser has good reason to believe that the endorser continues to subscribe to the views presented in the endorsement.”

In help, the FTC cited Nat’l Dynamics Corp., 82 F.T.C. 488 (1973), an virtually 40 yr outdated case through which the FTC discovered that by publicizing undated testimonial letters written 5 to 10 years prior to now, the advertiser “created the impression, contrary to fact, that they were recent statements of persons contemporaneously using [the advertiser’s product] and that the statements represented the contemporaneous opinions of the authors.”  The FTC rejected the advertiser’s protection that it had no discover that the endorsers had been now not utilizing the product and now not endorsed it till comparatively just lately, discovering that it was the advertiser’s “duty to ensure that the testimonials they publish reflect facts and opinions existent at the time of publication and circulation.”  The FTC thus ordered the advertiser to stop and desist from utilizing, publishing, or referring to any testimonial or endorsement until it had “good reason to believe that at the time of such use, publication, or reference, the person or organization named subscribes to the facts and opinions therein contained.”

The language of the FTC’s latest discover mirrors that of the Endorsement Guides, which state that: “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.”  16 C.F.R. § 255.1(b).  Nonetheless, the discover seems to go a step additional in making use of this requiring to any endorsement, not simply these by consultants or celebrities.

The Endorsement Guides make clear that advertisers can fulfill this requirement by “securing the endorser’s views at reasonable intervals.”  16 C.F.R. § 255.1(b).  Reasonableness on this context is decided by elements like:

  • New data on the efficiency or effectiveness of the product,

  • A fabric alteration within the product,

  • Modifications within the efficiency of rivals’ merchandise, and

  • The advertiser’s contract commitments.

Id.  For instance, if a constructing contractor states that he makes use of the advertiser’s paint as a result of of its fast drying properties and sturdiness, however the advertiser subsequently reformulates its paint, the advertiser should contact the contractor to find out whether or not she or he would proceed to subscribe to the views introduced beforehand earlier than persevering with to make use of that contractor’s endorsement.  See 16 C.F.R. § 255.1, Instance 1.

NAD has utilized this precept to advertisers’ touting of rankings and critiques from unbiased third-party organizations. For instance, in American Dental Provide, LLC (White Brilliance Tooth Whitening System), NAD Case #4183 (Might 2004), Good Housekeeping Journal challenged the advertiser’s use of the declare “Good Housekeeping Magazine – ‘Best Results Overall’”.  4 years prior, in 2000, Good Housekeeping had in truth evaluated the advertiser’s product along with different tooth whitening merchandise, and concluded that the advertiser’s product provided the “best results overall.”  Nonetheless, in bringing this problem, Good Housekeeping made clear it now not subscribed to its analysis that was carried out again in 2000.  Citing the Endorsement Guides and the truth that {the marketplace} of tooth whitening merchandise had considerably modified since that point, and the use directions on the product had additionally modified within the interim, NAD really useful the advertiser discontinue this declare attributed to Good Housekeeping.

Advertisers who use or reference endorsements and testimonials from people or third-party organizations, whether or not they’re affiliated with the advertiser or unbiased, ought to periodically contact their endorsers to make sure they proceed to subscribe to the marketed views.  Particularly, they need to accomplish that any time there’s a materials change within the marketed product or, the place the endorsement issues aggressive merchandise, the place there’s a change in these aggressive merchandise or the aggressive market.

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