On Notice: Misattributed, False, or Mischaracterized Endorsements

Persevering with our collection on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this submit considers the problems of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Discover as unfair or misleading. Specifically, the FTC said that:

  • It’s an unfair or misleading commerce apply to make claims which characterize, expressly or by implication, {that a} third celebration has endorsed a product or its efficiency when such third celebration has not in truth endorsed such product or its efficiency.

  • It’s an unfair or misleading commerce apply for an advertiser to misrepresent that an endorsement represents the expertise, views, or opinions of customers or purported customers of the product.”

  • It’s an unfair or misleading commerce apply to misrepresent an endorser as an precise person, a present person, or a current person of a product or service.

The FTC cited a number of prior choices in assist of its Discover, together with:

  • Ar-Ex Cosms., Inc., 48 F.T.C. 800 (1952). The advertiser, Ar-Ex, touted that its Particular Method (Non-Everlasting) Lipstick was the one lipstick really helpful by third celebration product-testing group, Shoppers’ Analysis, for girls that suffer from cracked, sore, dry, or chapped lips.  Nevertheless, Shoppers’ Analysis had merely famous that Ar-Ex offered lipsticks free from sure compounds­—not that it really helpful the merchandise.  The FTC subsequently discovered the advertiser’s declare to be false and deceptive.

  • J. Reynolds Tobacco Co., 46 F.T.C. 706 (1950). The FTC decided it was misleading for the makers of Camel cigarettes to promote utilizing testimonials that didn’t precisely replicate the endorsers’ opinions. Camel recruited various people to log out on testimonials, in change for compensation. However a few of these people said that they might not learn, and the testimonials they signed off on weren’t learn to them. Different testimonials had been fabricated totally, mischaracterized, or distorted. For instance, a number of testimonials said or implied the endorser was an unique Camel smoker, when the endorser didn’t smoke cigarettes in any respect. And a few of the testimonials said the endorser most well-liked Camel over all different manufacturers when, if truth be told, the endorser couldn’t inform the distinction between Camels and different cigarettes.

  • Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984). The FTC discovered the advertiser deceptively implied that testimonials got here from present or current product customers of its “Ball-Matic” gadget. For instance, the testimonials used language like “. . . now I get four miles more per gallon” and “now that I have installed your unit . . .” (emphasis added). In reality, the endorsements had been written 5 to 6 years earlier than the date of the ads – not by people who had presently or just lately used the gadget.

The FTC’s Endorsement Guides are in line with these choices, stating that:

  • “Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser.” 16 CFR § 255.1(1).  Subsequently, to be able to make a declare {that a} third celebration endorses your product or its efficiency, the third celebration should truly endorse the product or its efficiency.

  • “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.” 16 CFR § 255.1(c).

  • “Advertisements presenting endorsements by what are represented, directly or by implication, to be ‘actual consumers’ should utilize actual consumers in both the audio and video, or clearly and conspicuously disclose that the persons in such advertisements are not actual consumers of the advertised product.” 16 CFR § 255.2(c).

Allegations of misattributed, false, or mischaracterized endorsements have made headlines lately, as manufacturers have tried to capitalize on the worth of superstar endorsements. This usually arises when a star or public determine is noticed utilizing an advertiser’s product. For instance, when then President Barack Obama was photographed sporting a Weatherproof jacket on a visit to China, Weatherproof turned this {photograph} right into a billboard in Times Square. A White Home aide publicly responded, stating “[t]his ad is clearly misleading because the company suggests the approval or endorsement of the president or the White House that it does not have.” Weatherproof voluntarily agreed to take down the billboard.

Equally, when actress Katherine Heigl was photographed carrying Duane Reade procuring baggage, the pharmacy Tweeted the picture, with the caption “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” In response, Katherine Heigl filed suit within the Southern District of New York, alleging violations of the Lanham Act, New York state unfair competitors legislation, and the precise of publicity. Heigl’s criticism sought $6 million in damages, although the events later reached a settlement, the phrases of which weren’t disclosed.

In additional excessive circumstances, manufacturers have confronted allegations that they fabricated superstar endorsements out of entire material. For instance, in early 2020, Tom Hanks spoke out towards an advert for CBD merchandise that featured a photograph of the actor, alongside a quote he mentioned was falsely attributed to him. Calling it a “false and intentional hoax,” Hanks said “I’ve never said this and would never make such an endorsement.” Movie star physician Dr. Oz was featured in the identical adverts, and re-Tweeted Hanks’s message, including “[t]his is a fake and misleading advertisement intended to take advantage of consumers using false claims and our likenesses illegally.”

With the rise of influencer advertising, endorsements from celebrities and different public figures are extra precious than ever earlier than. Advertisers needs to be cautious to convey any superstar or influencer endorsements in a approach that’s devoted to the endorser’s opinion and message – significantly now that the FTC’s Discover of Penalty Offenses has recognized this as an space of focus for the FTC.

These parts of the Discover of Penalty Offenses are additionally of specific significance for advertisers who use client endorsements or critiques of their promoting. For instance, if a tv industrial depicts paid actors relatively than precise product customers, this needs to be clearly and conspicuously disclosed. See 16 CFR § 255.2, Instance 6. And if a client showing in an commercial says one thing or is portrayed in a way that means the buyer is a present or current product person, the advertiser ought to periodically confirm that continues to be true, or else discontinue its use of that endorsement after an inexpensive period of time. Advertisers who quote client critiques of their promoting also needs to take steps to verify that every such client truly purchased and used the product, and may preserve data to that impact. See, e.g.Function Inc. (Shampoo and Conditioner), NAD SWIFT Case #6938 (February 2021) (cautioning that “advertisers using consumer reviews in their advertising should maintain a record of reviews to demonstrate that each review represents a person that has used the product”).

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