Advertising Law Blog

The FTC has extended the current public comment period related to proposed revisions of its Guides Concerning the Use of Endorsements and Testimonials in Advertising until March 2, 2009. In a Federal Register notice published on November 28, 2008, the FTC has requested public comments on its proposed revisions to the Guide provisions addressing, among other things, consumer endorsements and disclosure of material connections between advertisers and endorsers.

As we previously reported here, the proposed revisions to its endorsement and testimonial guides if implemented, will greatly impact advertising utilizing testimonials, a key element of health product and testimonial advertising. Under the proposed revisions, if an advertiser does not have substantiation demonstrating that the results depicted in a testimonial are typical, the advertiser is required affirmatively state the typical experience or otherwise have its own empirical data demonstrating that consumers understand the limitations of the testimonial. As to endorsers, the FTC seeks to clarify that advertisers are subject to liability for false or unsubstantiated statements made through endorsements, that advertisers are subject to liability failing to disclose material connections between themselves and their endorsers - even in interviews where product promoted, that endorsers may also be subject to liability for their statements, and that an expert endorser must have expertise in the area that the ad implies the expert possesses.