Many Americans think back fondly on Speedy Alka-Seltzer, Morris the Cat, and other advertising icons.  But there’s one promotional mainstay whose demise won’t be mourned by consumers:  the endorser whose “30 pounds in 30 days weight loss miracle!” or “Internet millions in just a few hours a week!” was always accompanied by the fineprint footnote, “Results not typical.”

After a comprehensive review, including research on how consumers interpret these claims and extensive comments from industry members, the Federal Trade Commission (FTC) issued its revised Guides Concerning the Use of Endorsements and Testimonials in Advertising.  The substance of the Guides remains largely unchanged.  Advertisers still must have adequate substantiation to support claims made through endorsements in the same way they’re required to if they had made the representation directly.  In other words, advertisers may not convey through testimonials claims they could not otherwise prove with competent and reliable evidence.  But one key revision of particular interest to electronic retailers is the new standard for endorsements that don’t represent the experience buyers can expect from using the advertised product themselves.

Under the old Guides, if the endorser’s experience wasn’t representative of what buyers would generally achieve – for example, if the 50-pound weight loss of “Mary G., Tucson, Arizona” wasn’t typical – the Guides allowed the advertiser either to “clearly and conspicuously disclose what the generally expected performance would be in the depicted circumstances or clearly and conspicuously disclose the limited applicability of the endorser’s experience to what consumers may generally expect to achieve.”  Despite the unequivocal requirement that the disclosures must be clear and conspicuous, some advertisers flouted this directive by cherry-picking their best case scenario, touting those results in banner headlines, and dropping an all-but-invisible footnote with the cryptic statement, “Results not typical” or “Individual results may vary.”

No more.  As the revised Guides make clear, testimonials reporting specific results achieved by using the product or service generally will be interpreted to mean that the endorser’s experience is what others typically can expect to achieve. That leaves advertisers with two choices:  1) Have adequate proof to back up that claim, or 2) “Clearly and conspicuously disclose the generally expected performance in the depicted circumstances.”

How will that work in an actual ad?  The revised Guides include numerous examples with practical advice for marketers.  Suppose an ad features an endorsement from “Mary G.”claiming “I lost 50 pounds in 6 months with WeightAway.”  According to the revised Guides, the FTC likely will read the ad to convey the claim that Mary G.’s experience is what consumers typically will achieve by using the product.  Therefore, if consumers can’t generally expect to get those results, the ad should clearly and conspicuously disclose what they can expect to lose in similar circumstances – for example, “Most women who use WeightAway for six months lose at least 15 pounds.”        

This revision to the Guides closes up a troubling loophole that has deceived consumers and subjected honest advertisers to unfair competition from their less scrupulous counterparts.  To find out more, read The FTC’s Revised Endorsement Guides:  What People are Asking and watch the FTC’s videos on the Endorsement Guides.

Lesley Fair is an attorney with the FTC’s Bureau of Consumer Protection.