53124 Federal Register / Vol. 74, No. 198 / Thursday, October 15, 2009 / Rules and Regulations 

1Comments were submitted by the American 

Association of Advertising Agencies (‘‘AAAA’’), the 

American Advertising Federation (‘‘AAF’’), the 

Council for Responsible Nutrition (‘‘CRN’’), the 

Direct Marketing Association (‘‘DMA’’), the Direct 

Selling Association (‘‘DSA’’), the Electronic 

Retailing Association (‘‘ERA’’), the Interactive 

Advertising Bureau, Inc. (‘‘IAB’’), the Promotion 

Marketing Association, Inc. (‘‘PMA’’), the U.S. 

Chamber of Commerce (‘‘C of C’’), the Association 

of National Advertisers (‘‘ANA’’), the Public 

Relations Society of America (‘‘PRSA’’), Higher 

Power Marketing (‘‘HPM’’), the Natural Products 

Association (‘‘NPA’’), the National Association of 

Realtors (‘‘NAR’’), the Word of Mouth Marketing 

Association (‘‘WOMMA’’), BzzAgent, Inc. 

(‘‘BzzAgent’’), the Personal Care Products Council 

(‘‘PCPC), Kelley Drye & Warren, LLP, MonyeiHinson, and Heath-McLeod. In some cases, a 

comment was submitted by more than one party. 

Citations to these joint comments identify the 

individual commenters (e.g., AAAA/AAF). In 

addition, several commenters signed on to more 

than one comment. 

2The 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. 

3The exceptions were the comments filed by 

Monyei-Hinson (calling for stringent regulation of 

endorsements and new media, and specific rules 

regarding holding celebrities accountable and 

disclosing celebrity pay); and Heath-McLeod 

(agreeing overall with the proposed changes but 

calling for, among other things, minimum standards 

for the size and clarity of disclosures). 

4AAAA/AAF, at 8, 10, 18; PRSA, at 2; ANA, at 

2; DMA, at 3 (stating that the current approach 

should be continued ‘‘[u]ntil there is a 

demonstrated market failure across all media 

channels’’). 

5PMA, at 3; DMA, at 3 (stating that there is an 

‘‘insufficient basis to support a conclusion that the 

current regulatory and market safeguards 

inadequately protect consumers’’). 

6DMA, at 1. 

7IAB, at 3. 

FEDERAL TRADE COMMISSION 

16 CFR Part 255 

Guides Concerning the Use of 

Endorsements and Testimonials in 

Advertising 

AGENCY: Federal Trade Commission. 

ACTION: Final Rule; Notice of adoption 

of revised Guides. 

SUMMARY: The Federal Trade 

Commission (‘‘FTC’’ or ‘‘Commission’’) 

is adopting revised Guides Concerning 

the Use of Endorsements and 

Testimonials in Advertising (‘‘the 

Guides’’). 

DATES: Effective December 1, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Shira Modell, Attorney, Division of 

Advertising Practices, Bureau of 

Consumer Protection, Federal Trade 

Commission, Washington, D.C., 20580; 

(202) 326-3116. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. OVERVIEW OF THE COMMISSION’S 

REVIEW OF THE GUIDES 

II. REVIEW OF COMMENTS ON 

PROPOSED REVISIONS TO THE 

GUIDES 

III. SECTION-BY-SECTION 

DESCRIPTION OF ADDITIONAL 

CHANGES TO PROPOSED GUIDES 

PUBLISHED IN NOVEMBER 2008 

IV. REVISED ENDORSEMENT AND 

TESTIMONIAL GUIDES 

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 January 2007, the 

Commission published a FEDERAL

REGISTER notice seeking comment on the 

overall costs, benefits, and regulatory 

and economic impact of the Guides. 72 

FR 2214 (Jan. 18, 2007). The 

Commission also requested comment on 

consumer research it commissioned 

regarding the messages conveyed by 

consumer endorsements and on several 

other specific issues, the most 

significant of which was the use of socalled ‘‘disclaimers of typicality’’ 

accompanying testimonials that do not 

represent experiences that consumers 

can generally achieve with the 

advertised product or service. 

Specifically, the Commission asked 

about the potential effect on advertisers 

and consumers if the Guides required 

clear and conspicuous disclosure of the 

generally expected performance 

whenever the testimonial is not 

generally representative of what 

consumers can expect. Twenty-two 

comments were filed in response to this 

notice. 

In November 2008, the Commission 

published a FEDERAL REGISTER notice, 73 

FR 72374 (Nov. 28, 2008), that 

discussed the comments it had received 

in 2007, proposed certain revisions to 

the Guides, and requested comment on 

those revisions. Seventeen comments 

were filed.1 After reviewing those 

comments, the Commission is now 

making additional changes to the 

Guides, and adopting the resulting 

revised Guides as final.2The revised 

Guides include additional changes not 

incorporated in the proposed revisions 

published for public comment in 

November 2008. See 73 FR 72374 (Nov. 

28, 2008). 

II. REVIEW OF COMMENTS ON 

PROPOSED REVISIONS TO THE 

GUIDES 

Nearly all of the comments received 

by the Commission took issue with, or 

raised questions about, one or more of 

the changes included in the proposed 

revised Guides.3 Several argued that 

there was no need for the Guides to be 

revised at all, and that the 1980 Guides, 

combined with continued industry selfregulation and the Commission’s caseby-case law enforcement, would 

adequately balance the needs of 

advertisers and the interest of consumer 

protection.4 As discussed below, others 

argued that the evidence in the record 

did not support the proposed changes,5

that the proposed revisions to the 

Guides could have a negative affect on 

emerging media channels and impede 

the ability of businesses to communicate 

with consumers through legitimate 

testimonials and endorsements,6 and 

that the Commission should look to 

industry to address any problems in the 

marketplace and, where appropriate, to 

revise existing self-regulatory 

frameworks to address the evolving 

concerns posed by emerging digital 

advertising channels.7 As discussed 

below, the application of the Guides to 

new media and the Commission’s 

proposed elimination of the ‘‘safe 

harbor’’ afforded by the 1980 Guides to 

non-typical testimonials accompanied 

by disclaimers of typicality were issues 

addressed in a number of the comments. 

A. Analysis of Comments Concerning 

What Communications Should Be 

Considered ‘‘Endorsements’’ Under 

§ Section 255.0 of the Guides 

1. General Issues 

As proposed by the Commission in its 

November 2008 FEDERAL REGISTER

notice, Section 255.0(b) of the Guides 

would state in part that: 

[A]n endorsement means any 

advertising message (including verbal 

statements, demonstrations, or 

depictions of the name, signature, 

likeness or other identifying personal 

characteristics of an individual or the 

name or seal of an organization) 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. 

One commenter stated that defining 

endorsements based on a subjective 

measure of consumer understanding – 

that is, by the sole criterion of whether 

consumers are likely to believe the 

statement reflects the views of the 


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Federal Register / Vol. 74, No. 198 / Thursday, October 15, 2009 / Rules and Regulations 53125 

8PRSA, at 3. 

9The proposed revised definition reflects only 

one change from the definition adopted in 1980: the 

addition of the phrase ‘‘even if the views expressed 

by that party are identical to those of the sponsoring 

advertiser.’’ 

10FTC Policy Statement on Deception, appended 

to Cliffdale Associates, Inc., 103 F.T.C. 110, 174, 

175 (1984) (citation omitted) (hereafter ‘‘Deception 

Policy Statement’’) (stating that in determining 

whether a representation, omission, or practice is 

deceptive, ‘‘we examine the practice from the 

perspective of a consumer acting reasonably in the 

circumstances’’). 

11WOMMA defines ‘‘word of mouth marketing’’ 

as ‘‘Giving people a reason to talk about your 

products and services, and making it easier for that 

conversation to take place. It is the art and science 

of building active, mutually beneficial consumer-toconsumer and consumer-to-marketer 

communications.’’ http://womma.org/womm101 

(last visited Oct. 1, 2009). 

12 E.g., BzzAgent, at 4-5. 

13ERA/CRN, at 33; PMA, at 17 (citing the ‘‘nearendless’’ variety of possible relationships between 

bloggers and the companies about whose products 

they blog); see also DMA, at 4-5 (stating that the 

Commission should not apply the same principles 

‘‘addressing narrow concerns associated with 

endorsements made through a print medium to 

dynamic channels such as the Internet’’; rather than 

apply the Guides to these new media, the 

Commission should address the issue by means of 

case-by-case law enforcement actions under the 

1980 Guides, so it can give appropriate 

consideration to the unique characteristics of this 

particular medium of communication). 

14IAB, at 3 (‘‘If the Commission were to adopt 

guidelines addressing new media without a 

sufficient understanding of how such new 

technologies are being harnessed or may be used in 

the future, the Commission might risk dissuading 

the development of novel means of advertising that 

effectively serve the interests of consumers in ways 

not yet imagined.’’); AAAA/AAF, at 17 

(‘‘[R]egulating these developing media too soon may 

have a chilling effect on blogs and other forms of 

viral marketing, as bloggers and other viral 

marketers will be discouraged from publishing 

content for fear of being held liable for any 

potentially misleading claim.’’); DMA, at 5 (noting 

a potential ‘‘chilling effect on the use of the Internet 

as a communication channel’’). 

15 E.g., IAB, at 3; C of C, at 5 (the industry has 

already successfully self-regulated). 

16PCPC, at 1-2 (asserting that ‘‘a magazine article 

or newspaper article that reviews a product is not 

an ‘endorsement’ for purposes of advertising law, so 

too is a blog that performs this same function,’’ and 

that receipt by the blogger of a free product sample 

for review purposes does not change this analysis, 

‘‘provided that the product itself does not have such 

a high value that would make its receipt material 

(e.g., a car), since the resulting editorial content – 

good or bad – is not controlled by the marketer’’); 

see also IAB, at 4 (stating that bloggers, like movie 

critics, are provided free product because the 

marketer wants unbiased feedback). 

17WOMMA, at 6. 

18BzzAgent, at 1; see also id. at 4-5 (FTC should 

‘‘distinguish between honest word of mouth shared 

among actual consumers from marketing messages 

spread by controlled consumer endorsers ’’; 

consumers who participate in BzzAgent network 

marketing program are the former). 19BzzAgent, at 6-8 (if mere provision of samples 

to honest reviewers is considered proxy for control, 

reviewers would inadvertently qualify as endorsers, 

even though their views are their own, not those of 

the company that provided the free product). 20 Id. at 6-8 (noting that modern companies that 

distribute product samples to facilitate honest word 

of mouth communications are analogous to 

distributor who offers free samples to grocery 

shoppers, that participants in these network 

marketing program are analogous to supermarket 

shoppers who try the free sample and perhaps tell 

their friends about it, and that neither of these 

scenarios should be encompassed by the Guides). 

endorser, rather than that of advertiser 

– creates inherent uncertainty.8

The Guides have always defined 

‘‘endorsements’’ by focusing on the 

message consumers take from the 

speech at issue.9 Indeed, this focus on 

consumer takeaway is completely 

consistent with the approach the 

Commission uses to determine whether 

a practice is deceptive, and thus in 

violation of the FTC Act.10 Accordingly, 

the Commission concludes that no 

additional changes to the proposed 

revised definition of ‘‘endorsement’’ are 

warranted. 

2. New Media – Consumer-Generated 

Content as an ‘‘Endorsement’’ Within 

the Meaning of the Guides 

The Commission’s November 2008 

proposal included several examples 

applying various Guide provisions to 

new forms of consumer-generated 

media, such as the use of blogs in word 

of mouth marketing campaigns, and 

several commenters focused specifically 

on these examples.11 Some of the 

comments questioned whether 

statements in certain of these new 

media qualify as ‘‘endorsements’’ under 

the Guides, given, among other things, 

the advertiser’s limited control over the 

messages disseminated to the public.12

Other commenters argued that it was 

premature for the Commission to apply 

the Guides to these new media without 

the opportunity for further discussion 

about these media and guidance on the 

scope of the liability that the Guides 

would create for advertisers,13 with 

some suggesting that the future growth 

of these new media wouldbe adversely 

affected if they were subject to the 

Guides because advertisers would be 

deterred from using them.14 These 

commenters opined that the 

Commission should, instead, defer to 

industry self-regulation, as it has done 

in the past when industry has proven 

itself capable of protecting consumers.15

One commenter observed that the 

proposed Guides could leave the 

impression that any blog that speaks 

positively about a product would 

necessarily be covered by the Guides, 

and thus by Section 5, and that such an 

outcome would be wrong for a blog: 

that functions similarly to traditional 

media . . . if (1) the blog provides 

content that is editorially 

independent of any sponsor or 

marketer of a product or service, and 

(2) there is no material connection 

with the marketer of a product or 

service that is discussed in the blog 

that would call into question the 

editorial independence of the blog.16

Two commenters with particular 

interest in word of mouth marketing 

also addressed the application of the 

Guides to these new consumergenerated media. One noted the 

distinction between blogs that are just 

personal communication spaces, and 

those that are essentially commercial 

communication spaces, asserting that 

although an ‘‘advertising message’’ is 

intended by the latter – making it 

subject to the Guides – no such message 

is intended by the former and the 

Guides should not apply.17

Similarly, the other commenter noted 

that the Guides should not 

‘‘inadvertently regulate everyday wordof-mouth communications among actual 

consumers regardless of whether such 

communications take place in person, 

via e-mail or in new mediums such as 

blogs or social networking Web sites.’’18

This commenter stated that even if 

consumers participate in advertising 

sampling programs, their online 

comments about a particular product 

should not be considered commercial 

speech and these consumers should not 

be deemed ‘‘endorsers’’ when they are 

free to say whatever they want about the 

product (or not say anything at all) 

without the advertiser having any 

control over their statements.19 By 

extension, this commenter contended 

that neither the advertiser nor the 

publisher should be liable for any false 

or unsubstantiated statements made by 

these consumer reviewers.20

The comments correctly point out that 

the recent development of a variety of 

consumer-generated media poses new 

questions about how to distinguish 

between communications that are 

considered ‘‘endorsements’’ within the 

meaning of the Guides and those that 

are not. The Commission disagrees, 

however, with those who suggest that 

there is not yet an adequate basis to 

provide guidance in this area. As set 

forth below, after considering the 

observations provided by various 

commenters, the Commission is setting 

forth a construct for analyzing whether 

or not consumer-generated content falls 

within the definition of an endorsement 

in Section 255.0(b) of the Guides. The 

Commission will, of course, consider 

each use of these new media on a caseby-case basis for purposes of law 

enforcement, as it does with all 

advertising. 

The Commission does not believe that 

all uses of new consumer-generated 


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53126 Federal Register / Vol. 74, No. 198 / Thursday, October 15, 2009 / Rules and Regulations 

21Even if that consumer receives a single, 

unsolicited item from one manufacturer and writes 

positively about it on a personal blog or on a public 

message board, the review is not likely to be 

deemed an endorsement, given the absence of a 

course of dealing with that advertiser (or others) 

that would suggest that the consumer is 

disseminating a ‘‘sponsored’’ advertising message. 

This is not to say that use of a personal blog 

means that the statements made therein would 

necessarily be deemed outside the scope of the 

Guides; the Commission would have to consider the 

rest of the indicia set forth above to determine if 

the speaker was essentially ‘‘sponsored’’ by the 

advertiser. 

22The fact that the participants technically might 

be free not to say anything about any particular 

product they receive through the program does not 

change the Commission’s view that positive 

statements would be deemed to be endorsements. 

The underlying purpose of these word of mouth 

marketing programs is to generate positive 

discussion about the advertiser’s products. 

23According to WOMMA, $1.35 billion was spent 

on social media marketing in 2007, and that figure 

is expected to reach $3.7 billion by 2011. (http:// 

www.ft.com/cms/s/0/9a58f44c-1fae-11de-a1df00144feabdc0.html) (last visited Oct. 1, 2009). 

24Indeed, some industry groups have made 

established codes of ethics that are very much in 

line with the approach taken in the Guides. For 

example, WOMMA attached to its comment a copy 

of the Word of Mouth Marketing Ethics Code of 

Conduct. 

25The examples involving new media included in 

the revised Guides are based on specific fact 

patterns that lend themselves to relatively clear 

answers. The Commission recognizes that many 

other hypotheticals could be posited that would be 

far more difficult to answer; those will have to be 

considered on a case-by-case basis. 

media to discuss product attributes or 

consumer experiences should be 

deemed ‘‘endorsements’’ within the 

meaning of the Guides. Rather, in 

analyzing statements made via these 

new media, the fundamental question is 

whether, viewed objectively, the 

relationship between the advertiser and 

the speaker is such that the speaker’s 

statement can be considered 

‘‘sponsored’’ by the advertiser and 

therefore an ‘‘advertising message.’’In 

other words, in disseminating positive 

statements about a product or service, is 

the speaker: (1) acting solely 

independently, in which case there is 

no endorsement, or (2) acting on behalf 

of the advertiser or its agent, such that 

the speaker’s statement is an 

‘‘endorsement’’ that is part of an overall 

marketing campaign? The facts and 

circumstances that will determine the 

answer to this question are extremely 

varied and cannot be fully enumerated 

here, but would include: whether the 

speaker is compensated by the 

advertiser or its agent; whether the 

product or service in question was 

provided for free by the advertiser; the 

terms of any agreement; the length of 

the relationship; the previous receipt of 

products or services from the same or 

similar advertisers, or the likelihood of 

future receipt of such products or 

services; and the value of the items or 

services received. An advertiser’s lack of 

control over the specific statement made 

via these new forms of consumergenerated media would not 

automatically disqualify that statement 

from being deemed an ‘‘endorsement’’ 

within the meaning of the Guides. 

Again, the issue is whether the 

consumer-generated statement can be 

considered ‘‘sponsored.’’ 

Thus, a consumer who purchases a 

product with his or her own money and 

praises it on a personal blog or on an 

electronic message board will not be 

deemed to be providing an 

endorsement.21 In contrast, postings by 

a blogger who is paid to speak about an 

advertiser’s product will be covered by 

the Guides, regardless of whether the 

blogger is paid directly by the marketer 

itself or by a third party on behalf of the 

marketer. 

Although other situations between 

these two ends of the spectrum will 

depend on the specific facts present, the 

Commission believes that certain fact 

patterns are sufficiently clear cut to be 

addressed here. For example, a blogger 

could receive merchandise from a 

marketer with a request to review it, but 

with no compensation paid other than 

the value of the product itself. In this 

situation, whether or not any positive 

statement the blogger posts would be 

deemed an ‘‘endorsement’’ within the 

meaning of the Guides would depend 

on, among other things, the value of that 

product, and on whether the blogger 

routinely receives such requests. If that 

blogger frequently receives products 

from manufacturers because he or she is 

known to have wide readership within 

a particular demographic group that is 

the manufacturers’ target market, the 

blogger’s statements are likely to be 

deemed to be ‘‘endorsements,’’ as are 

postings by participants in network 

marketing programs. Similarly, 

consumers who join word of mouth 

marketing programs that periodically 

provide them products to review 

publicly (as opposed to simply giving 

feedback to the advertiser) will also 

likely be viewed as giving sponsored 

messages.22

Finally, the Commission disagrees 

with those who suggest that including 

in the Guides examples based on these 

new media would interfere with the 

vibrancy of these new forms of 

communication, or that the Commission 

should, instead, defer to industry selfregulation. Whether or not the Guides 

include examples based on these new 

media does not affect the potential 

liability of those who use these media 

to market their products and services. 

The Guides merely elucidate the 

Commission’s interpretation of Section 

5, but do not expand (or limit) its 

application to various forms of 

marketing. Furthermore, the 

Commission notes that spending on 

these new social media is projected to 

increase,23 and the commenters who 

expressed concerns about the future of 

these new media if the Guides were 

applied to them did not submit any 

evidence supporting their concerns. 

Moreover, to the extent that consumers’ 

willingness to trust social media 

depends on the ability of those media to 

retain their credibility as reliable 

sources of information, application of 

the general principles embodied in the 

Guides presumably would have a 

beneficial, not detrimental, effect. And 

although industry self-regulation 

certainly can play an important role in 

protecting consumers as these new 

forms of marketing continue to evolve 

and new ones are developed,24 selfregulation works best when it is backed 

up by a strong law enforcement 

presence. Thus, for example, the 

National Advertising Division of the 

Council of Better Business Bureaus will 

refer matters to the Commission when 

advertisers refuse to participate in, or do 

not abide by the decisions of, NAD’s 

self-regulatory review and dispute 

resolution process. The Commission 

believes that guidance as to the types of 

consumer-generated content that will be 

considered ‘‘endorsements’’ within the 

meaning of the Guides, and as to the 

responsibilities of the parties involved, 

informs both advertisers and endorsers 

of their attendant responsibilities in 

ensuring that advertising is truthful and 

non-misleading, and reduces potential 

misunderstanding of their obligations 

under Section 5 of the FTC Act.25

3. New Example 

The Commission is adding a new 

Example 8 to Section 255.0 to provide 

additional guidance about application of 

the factors set forth in Part II.A.2 above 

to statements made in consumergenerated media. This example posits 

three different fact patterns in which a 

consumer writes a positive blog review 

about a new product she has tried. In 

the first hypothetical, her statement is 

not deemed to be an endorsement 

within the meaning of the Guides 

because of the lack of any relationship 

whatsoever between the speaker and the 

manufacturer. In the second 

hypothetical, a coupon for a free trial of 

the new product is generated by the 

store’s computer, based on her 

purchases; again, given the absence of a 


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26NAR, at 1. 

27 Id. at 1-2. 

28Bzz Agent, at 4-5; see also IAB, at 4 (stating that 

making marketers liable for ‘‘actions of third parties 

over whom they exercise uncertain control’’ could 

lead to unintended consequences). 

29Bzz Agent, at 4-5. 

30WOMMA, at 9; ANA, at 6. 

31ANA, at 6 (stating that advertiser would be 

liable for blogger’s statements and failure to 

disclose material connections); DMA, at 4-5 (stating 

that advertiser would be liable for statements made 

by blogger over whom it has no control); PMA, at 

17 (stating that example appears to create liability 

for any company that sells a product that is 

reviewed by a blogger). 

relationship between the speaker and 

the manufacturer or other factors 

supporting the conclusion that she is 

acting on behalf of the manufacturer 

(i.e., that her statement is ‘‘sponsored’’), 

her review would not be deemed to be 

an endorsement. In the third fact 

pattern, however, there is an ongoing 

relationship between the consumer and 

a network marketing program, and 

economic gain by the consumer based 

on the stream of products, thereby 

making the blog posting an endorsement 

within the meaning of the Guides. 

4. Other Issues 

Another commenter asked the 

Commission to address several 

questions. First, would a product review 

written by an employee of an 

organization to inform the 

organization’s members about the 

availability, qualities, and features of 

particular products and services of 

interest to them be an endorsement by 

the organization within the meaning of 

the Guides?26 Second, assuming such a 

review would not be covered by the 

Guides, would the use of that review (or 

of quotations from it), in an 

advertisement disseminated by the 

seller of that product create ‘‘endorser’’ 

liability for the organization if the 

organization did not consent to or 

otherwise participate in the seller’s use 

of the product review?27

The answer to the first question is that 

such a review published in the 

organization’s own journal would not be 

considered an endorsement because the 

Commission would not consider the 

review to be an advertisement, and there 

is no sponsoring advertiser. However, if 

that review was used in an ad 

disseminated by the manufacturer of a 

product that received a favorable 

review, the organization’s statements 

would become an ‘‘endorsement’’ 

within the meaning of Section 255.0(d). 

(See Section 255.0, Example 1.) 

Nonetheless, assuming that the 

organization did not know about the 

manufacturer’s plan to use that review 

and did not receive any compensation 

for its use, the organization would not 

be liable for its use, even if the review 

did not comply with the Guide 

provisions concerning endorsements by 

organizations. (See Section 255.4.) 

B. Section 255.1 – General 

Considerations 

Although no commenters addressed 

the General Considerations section of 

the Guides, the Commission is making 

two additional revisions to Section 

255.1. First, a proposed cross-reference 

to Example 3 in Section 255.3 

(endorsements by experts) is being 

deleted from Section 255.1(a). Second, a 

cross-reference to the Guide provisions 

in Section 255.3 that set forth the 

standards that expert endorsers must 

meet is being added to new Example 3 

in Section 255.1. 

C. Comments Concerning the Liability of 

Endorsers and Advertisers for 

Endorsements Disseminated Through 

New Media 

Several comments questioned 

whether the advertiser should be liable 

for statements made by endorsers who 

use new media. One suggested that the 

advertiser should be liable for 

comments of an ‘‘endorser’’ only if the 

advertiser had the ability to control the 

consumer’s statements.28 Thus, if 

consumers are free to say what they 

wish about the product – or, if they 

choose, to say nothing about it – the 

advertiser should not face potential 

liability.29

Several comments specifically 

expressed concern about proposed new 

Example 5 to Section 255.1, with some 

concerned that the example suggests 

that bloggers potentially would be liable 

under Section 5 for simply giving their 

honest appraisal of a product and how 

it affected them personally.30

Commenters also focused on the fact 

that the advertiser could be liable for 

statements made by the blogger.31

The Commission recognizes that 

because the advertiser does not 

disseminate the endorsements made 

using these new consumer-generated 

media, it does not have complete 

control over the contents of those 

statements. Nonetheless, if the 

advertiser initiated the process that led 

to these endorsements being made –e.g., 

by providing products to well-known 

bloggers or to endorsers enrolled in 

word of mouth marketing programs – it 

potentially is liable for misleading 

statements made by those consumers. 

Imposing liability in these 

circumstances hinges on the 

determination that the advertiser chose 

to sponsor the consumer-generated 

content such that it has established an 

endorser-sponsor relationship. It is 

foreseeable that an endorser may 

exaggerate the benefits of a free product 

or fail to disclose a material relationship 

where one exists. In employing this 

means of marketing, the advertiser has 

assumed the risk that an endorser may 

fail to disclose a material connection or 

misrepresent a product, and the 

potential liability that accompanies that 

risk. The Commission, however, in the 

exercise of its prosecutorial discretion, 

would consider the advertiser’s efforts 

to advise these endorsers of their 

responsibilities and to monitor their 

online behavior in determining what 

action, if any, would be warranted. 

New Example 5 should not be read to 

suggest that an advertiser is liable for 

any statement about its product made by 

any blogger, regardless of whether there 

is any relationship between the two. 

However, when the advertiser hires a 

blog advertising agency for the purpose 

of promoting its products – as posited 

by the specific facts set forth in this 

example – the Commission believes it is 

reasonable to hold the advertiser 

responsible for communicating 

approved claims to the service (which, 

in turn, would be responsible for 

communicating those claims to the 

blogger). 

The commenters expressing concern 

that the blogger in new Example 5 

potentially could be liable for giving her 

honest opinion of the product (that it 

cures eczema) and discussing her 

personal experience with it appear to 

have misread the example. The blogger 

did not either give her opinion about 

subjective product characteristics (e.g., 

that she liked the fragrance) or relate her 

own experience with it (the example 

does not say that she had eczema). 

Rather, she made a blanket claim that 

the product ‘‘cures’’ eczema without 

having any substantiation for that claim. 

The Commission is revising new 

Example 5, however, to clarify that both 

the advertiser and the blogger are 

subject to liability for misleading or 

unsubstantiated representations made in 

the course of the blogger’s endorsement. 

D. Comments Addressing Celebrity 

Endorsements 

The 1980 Guides did not explicitly 

state that endorsers, as well as 

advertisers, could be liable under the 

FTC Act for statements they make in an 

endorsement. To make that potential 

liability more apparent to those who 

might be considering making an 

endorsement (and to those counseling 

prospective endorsers), the 

Commission’s proposed revised Guides 

included new language in Section 


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32In that example, an infomercial for a home 

fitness system is hosted by a well-known 

entertainer. The entertainer demonstrates the 

machine and states that it is the most effective and 

easy-to-use home exercise machine that she has 

ever tried. The example states that even if she is 

reading from a script, this statement would be an 

endorsement, because consumers are likely to 

believe it reflects the entertainer’s views. 

33PMA, at 12. 

34 Id. 

35AAAA/AAF, at 11; PMA, at 13. 

36AAAA/AAF, at 11; PMA, at 12. 

37AAAA/AAF, at 11-13; PMA, at 13. 

38AAAA/AAF, at 11-12; see also PMA, at 11. 

39AAAA/AAF, at 13. 

40PMA, at 13. 

41In that example, a well-known celebrity appears 

in an infomercial for an oven roasting bag that 

purportedly cooks every chicken perfectly in thirty 

minutes. During the shooting of the infomercial, the 

celebrity watches five attempts to cook chickens 

using the bag. In each attempt, the chicken is 

undercooked after thirty minutes and requires sixty 

minutes of cooking time. In the commercial, the 

celebrity places an uncooked chicken in the 

roasting bag and places the bag in one oven. He 

then takes a bag from a second oven, removes what 

appears to be a perfectly cooked chicken, tastes it, 

and says that if you want perfect chicken every 

time, in just thirty minutes, this is the product you 

need. 

42AAAA/AAF, at 13-14; see also PMA, at 14. 

43AAAA/AAF, at 13-14; PMA, at 14 (stating that 

a celebrity cannot keep up with every element of 

production on infomercial set or know how final 

product will be edited). 

44As the Commission noted in its November 2008 

FEDERAL REGISTER notice, law enforcement actions 

have been brought against well-known personalities 

(i.e., celebrities) who have acted as endorsers. 73 

Fed Reg. at 72377 (citing Cooga Mooga, Inc., 92 

F.T.C. 310 (1978) (consent order)). 

45 Cf. FTC v. Publishing Clearing House, Inc., 106 

F.3d 407 (9 th Cir. 1997) (affirming liability for 

restitution of telephone solicitor who read facially 

deceptive script ‘‘word for word’’). 

255.1(d) stating that ‘‘Endorsers . . . may 

be liable for statements made in the 

course of their endorsements.’’The 

Commission’s proposal also included 

several new examples featuring 

celebrities and experts. (See, e.g., 

Section 255.0, Example 6; Section 255.1, 

Examples 3 and 4.) 

One comment asserted that proposed 

new Example 6 in Section 255.032

suggests that any recognizable figure 

who speaks about the attributes of a 

product or service would be considered 

an endorser, even if the celebrity’s 

statements are clearly scripted and do 

not contain an expression of personal 

belief.33 This commenter also asserted 

that ‘‘under this new standard, when 

coupled with the proposed changes to 

endorser liability, a celebrity with a 

well-known voice who provides a 

scripted voice-over is just as liable for 

an advertisement’s message as a 

celebrity who promotes a product with 

direct statements of endorsement, such 

as ‘‘I use product X every day. It works 

for me.’’34

Two commenters stated that the 

proposed revisions to the Guides could 

unfairly expose celebrities to liability 

for advertising claims that they lack the 

knowledge to verify or the authority to 

change; indeed, they noted, celebrities 

who attempted to deviate from the 

script they are given might be subject to 

legal action for breach of contract.35

Because the proposed revised Guides 

provide little guidance about when 

celebrities would be liable for their 

endorsements, according to these 

commenters, celebrities might become 

concerned about potential liability; and 

if so, they could be deterred from 

endorsing products, thereby depriving 

advertisers of a long-standing and 

valuable advertising technique.36

Specifically, the commenters pointed 

out that celebrities are under contract to 

read the script that is provided to them, 

and do not have control over the content 

of the final ad, including how their 

endorsements will appear; nor do they 

possess the expertise needed to assess 

whether a particular claim violates the 

FTC Act.37 The proposed Guide 

revisions, they asserted, could be 

interpreted as imposing an obligation on 

celebrity endorsers to ensure that claims 

made by the advertiser and 

communicated by the celebrities are 

independently verified and properly 

substantiated – thereby requiring 

celebrities to educate themselves not 

only on the product at issue, but also on 

the relevant industry and competition.38

One comment opined that absent 

knowledge and control, celebrity 

liability based solely on participation in 

an ad would be contrary to existing case 

law.39 Another stated that it was not 

necessary to include a celebrity liability 

provision in the Guides, but to the 

extent that the FTC determined that 

such a guide is necessary, a narrowly 

tailored provision enumerating the 

circumstances under which a celebrity 

may be held liable would accomplish 

the Commission’s goals without creating 

an unnecessary chilling effect.40

The commenters also asked the 

Commission to reconsider new Example 

4 to revised Section 255.l41 because ‘‘it 

could unfairly expose celebrities to 

liability for claims beyond his/her 

expertise or control.’’42 They pointed 

out not only does the celebrity have no 

control over the final version of the 

roasting bag infomercial, but even 

during filming there could be activities 

of which the celebrity was unaware and 

thus for which he or she should not be 

held liable.43

The addition of new Section 255.1(d) 

and the new examples featuring 

celebrities does not create new liability 

for celebrities,44 but serves merely to let 

them (and their advisors) know about 

the potential liability associated with 

their endorsement activities. Indeed, as 

the Commission noted when it proposed 

Section 255.1(d), this new provision 

merely ‘‘explicitly recognizes two 

principles that the Commission’s law 

enforcement activities have already 

made clear,’’ one of which is ‘‘that 

endorsers may also be subject to liability 

for their statements.’’73 FR at 72377. 

Nor should Example 6 to Section 

255.0 be read to suggest that every 

appearance by a well-known personality 

will be deemed an endorsement. As the 

Commission previously noted, this 

example was added ‘‘to illustrate that 

the determination of whether a 

speaker’s statement is an endorsement 

depends solely on whether consumers 

believe that it represents the endorser’s 

own view.’’Id. Example 6 does not 

expand the scope of potential endorser 

liability but merely ‘‘clarifies that 

whether the person making the 

statement is speaking from a script, or 

giving the endorsement in his or her 

words, is irrelevant to the 

determination.’’Id. In this example, the 

celebrity’s statement that the home 

fitness system being advertised ‘‘is the 

most effective and easy-to-use home 

exercise machine that she has ever 

tried’’ would clearly be understood by 

consumers as an expression of personal 

belief. Moreover, new Example 7 to 

Section 255.0 presents a situation in 

which well-known persons who appear 

in advertising are not deemed to be 

endorsers. 

The Commission is not persuaded 

that a celebrity endorser’s contractual 

obligation to read the script he or she is 

given should confer immunity from 

liability for misrepresentations made in 

the course of that endorsement.45 The 

celebrity has decided to earn money by 

providing an endorsement. With that 

opportunity comes the responsibility for 

the celebrity or his or her legal 

representative to ensure in advance that 

the celebrity does not say something 

that does not ‘‘reflect [his or her] honest 

opinions, findings, beliefs, or 

experience.’’See 16 CFR 255.1(a). 

Furthermore, because celebrity 

endorsers are liable for what they say, 

not for the rest of the advertisement, 

their lack of control over the final 

version of a commercial does not 

warrant the immunity sought by the 

commenters. Nor are they required to 

become experts on the product or the 

industry, although they may have an 

obligation to make reasonable inquiries 

of the advertiser that there is an 


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46The first report, ‘‘The Effect of Consumer 

Testimonials and Disclosures of Ad Communication 

for a Dietary Supplement’’ (hereafter ‘‘Endorsement 

Booklet Study’’), was designed to examine whether 

consumer endorsements communicate product 

efficacy and typicality, and whether any of several 

prominent disclosures qualify or limit the claims 

conveyed by the ads. The second report, ‘‘Effects of 

Consumer Testimonials in Weight Loss, Dietary 

Supplement and Business Opportunity 

Advertisements,’’ was designed to explore the 

communication of product efficacy and typicality 

by advertisements containing testimonials of 

individuals who claimed to have achieved specific 

(that is, numerically quantified) results with the 

advertised product or system. 

47AAAA/AAF/CRN/DMA/DSA/ERA/IAB/PMA/C 

of C, at 3-4 (hereafter ‘‘C of C’’); AAAA/AAF, at 6- 

7; PMA, at 10-11; ANA, at 2-3; ERA/CRN, at 3-4, 

25 (stating that it is improper to rely on two studies 

of print ads to develop federal policy for all 

advertisements containing testimonials in any type 

of media, including media that were not tested in 

these studies). 

48AAAA/AAF, at 6-7. 

49ERA/CRN, at 17-20; see also PRSA, at 3 

(questioning premise that consumers would 

naturally assume that endorsement represents 

typical results). 

50Kelley Drye, at 9. 

51ERA/CRN, at 21-22; C of C, at 4 (stating that 

each ad containing a testimonial should be 

analyzed on its own merits); see also ANA, at 3 

Continued 

adequate basis for assertions that the 

script has them making. 

The Commission believes that the 

commenters misread FTC v. Garvey, 383 

F.3d 891 (9 th Cir. 2004). The Ninth 

Circuit noted that it had previously held 

that direct participation in the acts in 

question or authority to control them 

was sufficient to hold an individual 

liable for injunctive relief, although 

more was required to hold that person 

liable for restitution. Id. at 900. The only 

issue before the court was restitution 

because, as the court noted, the 

Stipulated Final Order entered by the 

district court ‘‘apparently applies to the 

Garvey defendants and provides the 

FTC all of the injunctive relief it could 

get against [them] . . . . [A]ll the FTC 

stands to gain from the Garvey 

defendants here is restitution; the issue 

of injunctive relief is moot.’’Id. at 900 

n.10. Although the court ultimately 

concluded, contrary to the 

Commission’s view, that the 

‘‘substantiation [Garvey] had was 

sufficient – at least for someone in [his] 

position’’ to avoid liability for 

restitution, id. at 902 (footnote omitted), 

that decision was based solely on the 

facts of that case and does not foreclose 

‘‘participant’’ liability for celebrities. 

Finally, it should be noted that 

proposed new Example 4 sets forth a 

specific set of facts in which the 

celebrity is liable only for statements 

that he personally made that were 

clearly contrary to what he observed 

with his own eyes, not for things out of 

his control. That is not to say that a 

celebrity who participates in the making 

of a claim that he or she should realize 

is exceptional –e.g., this product causes 

you to lose 10 pounds in 7 days – is 

excused from making reasonable 

inquiries as to the advertiser’s basis for 

those claims, but Example 4 posits very 

different circumstances. Accordingly, 

the Commission has concluded that no 

additional changes should be made to 

proposed new Example 4. 

E. Comments Addressing Revisions to 

Section 255.2 of the Guides – Use of 

Testimonials Reflecting Non-typical 

Consumer Experiences 

Many of the comments submitted in 

response to the November 2008 FEDERAL

REGISTER notice criticized the proposed 

changes to the provisions of Section 

255.2 that address the use of 

testimonials that do not reflect the 

results consumers can generally expect 

to achieve using the advertised product 

or service. 

The 1980 Guides said that a 

testimonial relating a consumer’s 

experience with respect to a key 

attribute of the advertised product or 

service: 

will 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, unless 

the advertiser possesses and relies 

upon adequate substantiation for this 

representation, the advertisement 

should either 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. 

As revised per the November 2008 

FEDERAL REGISTER notice, Section 255.2 

would state that an ad featuring 

consumer testimonials will likely 

convey that the testimonialists’ 

experiences are representative of what 

consumers can generally expect from 

the product or service in actual, albeit 

variable, circumstances, and that: 

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. 

73 FR at 72392 (footnote omitted). 

Thus, the proposed revisions would 

eliminate the safe harbor that the 1980 

Guides extended to non-typical 

testimonials accompanied ≥by results 

not typical≥ disclaimers, and require 

advertisers to meet the same 

substantiation requirements that would 

apply if they made that performance 

claim directly, rather than through the 

means of a testimonial. 

The comments argued that the 

Commission does not have an adequate 

basis for changing the Guides in this 

manner; that the change would 

impermissibly chill truthful speech in 

violation of the First Amendment; and 

that it would simultaneously limit the 

use of testimonials – to the detriment of 

both advertisers and consumers – and 

impose substantial burdens on those 

who continue to use them. For the most 

part, these arguments repeat criticisms 

made in response to the January 2007 

FEDERAL REGISTER notice, and thus have 

already been considered by the 

Commission. 

1. Comments Arguing That the Proposed 

Revisions to Section 255.2 Are 

Unwarranted and Not Supported by 

Reliable Evidence 

Several commenters argued that the 

Commission lacks an adequate basis for 

its proposed change to Section 255.2 

because the staff’s two consumer 

research reports46 are flawed and/or too 

limited in scope to warrant application 

to the entire advertising universe.47

Others asserted that there is little 

evidence consumers are deceived by 

testimonials. According to these 

comments, consumers understand that 

aspirational testimonials are reflective 

of specific consumers’ circumstances,48

and many of the respondents in the 

Commission’s studies who took away 

messages of typicality from the 

endorsements tested in those studies 

did not actually believe them, so the 

testimonials were not deceptive.49 One 

commenter submitted the results of new 

consumer survey research purporting to 

show that changes to Section 255.2 are 

not needed because most consumers 

expect their results to differ from the 

featured consumer’s or endorser’s 

results, and that almost all believe that 

a number of factors influence the results 

that ordinary consumers have when 

using products advertised using 

testimonials.50

Two commenters noted that whether 

a particular disclaimer of typicality is 

sufficient is a determination that must 

be made based on the facts of the 

particular advertisement.51 One argued 


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(stating that revisions would put the Commission’s 

traditional case-by-case law enforcement approach 

into doubt). 

52ERA/CRN, at 8. 

53Although Kelley Drye’s survey does suggest 

some baseline level of scepticism about 

testimonials, several other points about this 

research should be noted. First, the survey used a 

probability sample to recruit participants. As a 

result, even though participants were asked 

whether they would expect to do better than, the 

same as, or worse than individuals who gave 

testimonials for weight-loss or money-making 

programs, the survey did not screen them to 

determine whether they were actually interested in 

losing weight or in joining a money-making 

program. (For example, 10% of the participants 

who said they would lose less weight than the 

testimonialist explained that they were not very 

overweight.) Consumers who were potentially 

interested in such programs might have given 

different responses. 

Second, because it was conducted by telephone, 

the survey asked about testimonials in the abstract, 

rather than showing participants ads containing 

testimonials and actually assessing the messages 

conveyed by those ads. Consumers may bring preexisting beliefs to the ads they encounter, but the 

relevant issue for determining whether an ad is 

deceptive under Section 5 is what claims they take 

away from those ads. 

Third, even without the persuasive power of an 

actual testimonial, 31% of those who were asked 

about testimonials for weight loss programs and 

24% of those who were asked about testimonials for 

money-making programs said they would do as well 

or better than the testimonialist. 

Finally, the questions that purport to address 

whether consumers believe a variety of factors 

influence the results consumers have when using 

products advertised by testimonials were very 

leading. For example, one question was ≥I am now 

going to read you a statement, please tell me if you 

personally agree or disagree with that statement: 

when using a weight-loss program, the results 

people experience are influenced by a variety of 

factors, including how closely a person follows the 

program, a person’s own metabolism, and other 

factors.≥ StrategyOne, Testimonial Advertising 

Research, at 9 (2009) (attached to Kelley Drye 

comment). 

54See 73 FR at 72392 n.106. 

55The 1980 Guides did not specify the size of, or 

language to be used in, disclaimers of typicality, 

calling instead for them to be ‘‘clear and 

conspicuous.’’The Commission frequently adopts 

such a performance standard for disclosures, 

because it recognizes that giving advertisers 

flexibility to meet the specific needs of their 

particular message is often preferable to attempting 

to mandate specific language, font, and other 

requirements applicable across-the-board to all ads. 

Advertisers thus have always been free under the 

Guides to make their disclaimers as large and clear 

as they deemed appropriate to convey the necessary 

information to consumers. 

56C of C, at 2; see also HPM, at 1 (stating that 

Commission would be preventing truthful speech); 

ERA/CRN, at 4, 6 (stating that advertisers would 

have ‘‘to accompany facially truthful testimonial 

statements with disclosures of information that may 

be unknowable’’). 

57ANA, at 1, 4. 

58PMA, at 5. 

59ANA, at 3-4 (citing FTC’s reliance on the staff’s 

studies); ERA/CRN, at 28, 30 (stating that an 

advertiser would face difficulty in proving that its 

disclaimer was not deceptive). 

60ERA/CRN, at 28. 

that there was no logical connection 

between the Commission’s concern 

about the legibility of disclaimers and 

the proposed changes to Section 255.2, 

and that the appropriate remedy is 

requiring bigger, clearer disclaimers.52

The staff’s two consumer research 

reports were put on the public record in 

January 2007, and comments criticizing 

those reports were considered by the 

Commission when it issued the 

November 2008 FEDERAL REGISTER

notice. The Commission concluded that: 

After reviewing the staff’s consumer 

research reports (including the new 

tables), as well as all of the issues 

raised by the commenters, the 

Commission believes that the results 

of the staff’s studies do provide useful 

empirical evidence concerning the 

messages that testimonials convey to 

consumers and the effects of various 

types of disclaimers on the 

communication of efficacy and 

typicality claims. 

73 FR at 72385 (footnote omitted). 

The current comments, including the 

newly submitted consumer research, do 

not persuade the Commission that its 

previous conclusion was incorrect.53

The Commission agrees that each ad 

must be evaluated on its own merits to 

determine whether it is misleading. The 

proposed revisions to Section 255.2 

would not change that fundamental 

tenet of the Commission’s approach to 

law enforcement. Nor would they 

prohibit the use of disclaimers of 

typicality.54 The proposed revisions 

would eliminate the safe harbor for 

‘‘results not typical’’ and similar 

disclaimers that developed following 

the issuance of the 1980 Guides, thereby 

putting advertisers who use testimonials 

on the same legal footing as those who 

convey the same claims to consumers 

directly (that is, without testimonials). 

The Commission disagrees, however, 

with those who contend that, rather 

than proceed with the proposed changes 

to Section 255.2 and eliminate that safe 

harbor, it should simply require larger, 

clearer disclaimers.55 Even disclaimers 

substantially larger than those that are 

typically used by advertisers would 

likely not be effective. Specifically, 

despite the presence of strongly worded, 

highly prominent disclaimers of 

typicality, between 44.1% and 70.5% of 

respondents in the Endorsement Booklet 

Study indicated that the dietary 

supplement in question would reduce 

breathing problems, increase energy 

levels, or relieve pain in at least half of 

the people who try it. Nor would 

mandating larger disclaimers comport 

with the Commission’s longstanding 

preference for testimonials that either 

reflect generally expected results or are 

accompanied by clear and conspicuous 

disclosures of what the generally 

expected performance would be in the 

depicted circumstances. See 73 FR at 

72379 (reviewing the history of Section 

255.2). 

2. Argument that the proposed revisions 

to Section 255.2 will chill truthful 

speech in contravention of First 

Amendment 

Several commenters argued that the 

proposed changes to the Guides would 

deter advertisers from using truthful 

testimonials – either because they 

would be unable to generate adequate 

substantiation that those testimonials 

reflected the results consumers could 

generally expect or because they would 

be unwilling to risk a challenge by the 

Commission.56 Either way, they 

contend, the advertiser’s First 

Amendment rights will be infringed. 

One commenter making this argument 

noted that it might be virtually 

impossible for an advertiser to 

determine generally expected results to 

the FTC’s satisfaction a priori. Another 

contended that as revised, the Guides 

would either be forcing speech or 

imposing significant costs on truthful 

speech (that is, the cost of research to 

test the effectiveness of a disclaimer), 

resulting either way in a chilling 

effect.57 One asserted that the proposed 

change raises First Amendment 

concerns because there are less 

restrictive means available to achieve 

Commission’s goal of preventing 

deception –i.e., requiring that the 

current typicality disclaimer be 

displayed more prominently.58

Finally, other commenters suggested 

that, notwithstanding the Commission’s 

statement in the revised Guides that it 

could not rule out the possibility that a 

disclaimer of typicality would not be 

deceptive, 73 FR at 72392 n.106, 

marketers would not, as a practical 

matter, be able to proceed with such a 

disclaimer, regardless of how clear and 

conspicuous it was.59 Thus, according 

to the commenters, by suppressing the 

use of disclaimers of typicality, the 

revised Guides would have the effect of 

chilling commercial speech.60

The Commission has previously 

addressed arguments that its proposed 

elimination of the safe harbor afforded 

by the 1980 Guides to non-typical 

testimonials accompanied by 

disclaimers of typicality contravened 

the First Amendment. 73 FR at 72385- 


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61 Central Hudson Gas & Elec. Corp. v. Public 

Service Comm’n of New York, 447 U.S. 557, 566 

(1980) (commercial speech that concerns unlawful 

activity or is misleading is not entitled to 

constitutional protection and may be freely 

regulated). 

62 E.g., DMA, at 2 (stating that revisions would 

be a potential barrier to new businesses, or to 

introduction of new products); PRSA, at 5-6 (stating 

that removing safe harbor will work against 

consumers’ best interests because requiring research 

to determine ‘‘typical results’’ could end up 

depriving them of important information). 

63AAAA/AAF, at 4-5. 

64 E.g., C of C, at 3; AAAA/AAF, at 9; ERA/CRN, 

at 5-6; see also NPA, at 1-2. 

65PMA, at 11; ERA/CRN, at 3 (stating that 

requiring disclosure of ‘‘generally expected results’’ 

supported by the level of substantiation generally 

required of any other material claim ‘‘will work 

substantial hardship on many advertisers for many 

products,’’ especially advertisers of new products). 

66NPA, at 2 (stating that the Commission’s 

assertion in the November 2008 FEDERAL REGISTER

notice that marketers would be able to design 

reliable studies of product efficacy did not appear 

to be based on anything other than optimism, and 

did not address whether data from controlled 

studies – that might differ from consumers’ 

experiences in non-controlled settings – would be 

acceptable); PMA, at 7-8 (questioning whether the 

‘‘typical consumer’’ includes everyone who signed 

up or only those who finished program); C of C, at 

2 (stating that there is ‘‘no way to be sure how real 

consumers will use an exercise device when no one 

is monitoring them’’; ‘‘it may not be feasible to 

generate typicality data that would meet the 

Continued 

87. None of the arguments raised in this 

new round of comments changes the 

Commission’s conclusion that its 

proposed change to the Guides 

withstands Constitutional scrutiny. 

However, the Commission believes that 

the following points warrant reiteration. 

First, although the literal words of an 

individual testimonial may be truthful, 

those words cannot be viewed in 

isolation. It is well established that ‘‘an 

ad may be amenable to more than one 

reasonable interpretation.’’Telebrands 

Corp., 140 F.T.C. 278, 290 (2005), aff’d, 

457 F.3d 354 (4th Cir. 2006); see, e.g., 

Kraft, Inc., 114 F.T.C. 40, 120-21 n.8 

(1991); Thompson Medical Co., 104 

F.T.C. 648, 787 n.7 (1984). Moreover, 

‘‘[w]here an ad conveys more than one 

meaning, only one of which is 

misleading, a seller is liable for the 

misleading interpretation even if 

nonmisleading interpretations are 

possible.’’Telebrands Corp., 140 F.T.C. 

at 290; see, e.g., Bristol-Myers Co., 102 

F.T.C. 21, 320 (1983), aff’d, 738 F.2d 

554 (2d Cir. 1984); National Comm’n on 

Egg Nutrition v. FTC, 570 F.2d 157, 161 

n.4 (7th Cir. 1977). A secondary message 

understood by reasonable consumers is 

actionable if deceptive, even though the 

primary message is accurate. Deception 

Policy Statement, 103 F.T.C. at 178 n.21; 

see National Comm’n on Egg Nutrition, 

88 F.T.C. 89, 185 (1976), enforced in 

part, 570 F.2d 157 (7th Cir. 1977); Jay 

Norris Corp., 91 F.T.C. 751, 836 (1978), 

aff’d, 598 F.2d 1244 (2d Cir. 1979). 

The critical question for determining 

whether an ad is deceptive under 

Section 5 of the FTC Act – for all 

advertising, whether or not testimonials 

are involved – is what is the net 

impression consumers take away from 

the ad as a whole. The revised language 

in Section 255.2 would come into play 

only if a truthful testimonial: (1) 

conveys to consumers that the 

testimonialist’s results are 

‘‘representative of what consumers will 

generally achieve with the advertised 

product or service in actual, albeit 

variable, conditions of use’’; and (2) the 

advertiser does not have adequate 

substantiation for that claim. In other 

words, the Guides call for a disclosure 

only if the ad is misleading (and thus 

not protected by the First 

Amendment61) without a disclosure. On 

the other hand, if the advertisement, 

taken as a whole, does not convey an 

unsubstantiated, and thus misleading, 

message of typicality, no disclosure is 

necessary. 

Second, as noted above, the revised 

Guides would not prohibit the use of 

disclaimers of typicality. Although the 

Commission is, admittedly, skeptical 

that most disclaimers of typicality will 

be effective in preventing deception, 

Section 255.2 does not rule out the 

possibility that a clear, conspicuous, 

and informative disclaimer could 

accomplish this goal. See 16 CFR 255.2 

n.1 (noting also that this does not affect 

the Commission’s burden of proof in 

litigation). An advertiser unable to 

disclose what consumers can generally 

expect from its product could conduct 

consumer research to determine 

whether its ad is misleading. 

For the foregoing reasons, the 

Commission concludes that the 

revisions to Section 255.2 will not 

impermissibly chill truthful speech in 

violation of the First Amendment. 

3. The Proposed Revisions to Section 

255.2 Are Impractical and Burdensome 

A number of commenters asserted 

that the Commission’s revisions to 

Section 255.2(b) will be impractical for 

advertisers to implement, and that the 

net effect will be detrimental both to 

consumers and to new businesses that 

have not had enough sales to generate 

adequate substantiation.62 To the extent 

that some of these arguments echo those 

already made in comments submitted in 

response to the Commission’s January 

2007 FEDERAL REGISTER notice, the 

Commission has already considered 

them once, but does so now again. 

One commenter criticized the 

Commission’s proposed revision of the 

sentence in the 1980 Guides that stated 

that testimonials about the performance 

of the advertised product ‘‘will’’ convey 

typicality claims; as revised, that phrase 

would state that they ‘‘will . . . likely’’ 

convey such claims.63 In the view of 

this commenter, the new language will 

impose a burden on advertisers by 

making them responsible for 

determining how testimonials will be 

interpreted. As a result, many may 

decide to include generally 

representative disclaimers that are not 

actually necessary, thereby entailing 

expensive research costs to generate the 

needed data. 

The revision in question would 

recognize that, depending on how a 

testimonial is crafted and used in a 

particular ad, it might not convey a 

typicality claim; thus, the comment 

correctly points out that advertisers who 

use testimonials will be responsible for 

knowing what messages consumers take 

away from their ads. But advertisers 

already bear this responsibility. 

Moreover, the revision actually makes 

the Guides less restrictive, by allowing 

for the possibility that a testimonial will 

not convey a typicality claim, and thus 

not require any further qualification. 

Most of the commenters who 

addressed the proposed changes to 

Section 255.2, however, asserted that 

those changes are problematic because 

many advertisers – especially those in 

weight loss and health-related 

industries – would not be able to 

determine what the generally expected 

performance would be in the depicted 

circumstances, and thus would no 

longer be able to use aspirational 

testimonials. Specifically, they contend, 

determining generally expected results 

is impractical or extremely difficult for 

products whose results differ depending 

on the individual physiology of 

participants and their commitment to 

the program.64 The hardship imposed 

by eliminating the use of disclaimers of 

typicality would be especially great, 

according to the commenters, for those 

small businesses and new companies 

that will not have sufficiently large 

pools of customers from whom 

generally expected results can be culled, 

and thus they will not be able to use 

testimonials.65

Other commenters raised questions 

about the nature and scope of the study 

that would satisfy the Commission for 

purposes of determining what results 

consumers can generally expect from 

the advertised product, including 

whether results from controlled studies 

could be used.66 Two comments 


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Commission’s strict standards for the substantiation 

of such claims’’); ERA/CRN, at 4-5 (stating that the 

FTC does not explain the basis for its confidence 

that methodologically sound means of determining 

generally expected results can be devised for most 

products; scientific tests may show nothing about 

average results consumers can expect when results 

derive from frequency, intensity and commitment 

with which consumers use the product in question); 

see also AAAA/AAF, at 8 (stating that the 

determinations required by the Guides would likely 

require costly studies). 

67PRSA, at 6 (stating that disclosure would be 

confusing because of the amount of information 

advertisers would have to provide); PMA, at 3. 

68ERA/CRN, at 6 (stating that the Commission 

would be setting up a Hobson’s choice for 

marketers: abstain from using truthful testimonials 

because information about typical results is 

unobtainable, or risk FTC action); ANA, at 1 (stating 

that ‘‘advertisers fearing FTC enforcement 

proceedings may be forced to incur substantial costs 

trying to create quantitative support for the 

typicality of a testimonial statement or to refrain 

from providing truthful information to 

consumers’’); NPA, at 2 (stating that the fact that 

consumers’ habits vary widely ‘‘creates confusion 

about what constitutes a typical consumer in the 

first place’’). 

69 E.g., PMA, at 8 (stating that ‘‘Because there is 

no ‘typical’ or ‘average’ consumer and there are so 

many variables impacting weight loss or medical 

conditions, a typicality disclaimer is in fact the best 

way to properly disclose the limited applicability 

of testimonial results.’’). 

70C of C, at 2 (stating that ‘‘There may be no real 

doubt that the product is effective for consumers 

generally, and there may be no real doubt that the 

individual testimonials used in the advertisement 

are truthful. Yet, the advertiser would not be able 

to use such testimonials safely unless it could 

substantiate what the ‘typical’ consumer would 

achieve.’’ (footnote omitted)); PMA, at 7 (stating 

that it is impossible to capture substantiation for the 

‘‘‘typical consumer’ experience’’ because there is no 

such thing as a typical consumer when it comes to 

weight loss or health care); see also PRSA, at 5-6 

(noting the difficulty in determining ‘‘typical 

results’’). 

71If such studies are adequate to reasonably 

substantiate the efficacy claim of the product for the 

target audience of the ad, there is no reason why 

they could not reasonably be relied on to 

substantiate a ‘‘generally expected results’’ 

disclosure, provided that the data generated by the 

studies are relevant to the subjects of the ad at issue 

and the disclosure is not otherwise misleading. For 

example, it would be problematic to extrapolate 

from a study using obese young men to an ad using 

testimonials from older overweight women. 

72The disclosure should also describe the source 

of the data. 

73As well as identifying the group for whom those 

data are relevant, the disclosure should set forth 

other information that would be meaningful in 

assessing the study’s results, such as the duration 

of the study. For example, in an ad showing 

formerly overweight men, a disclosure might state 

‘‘in an 8-week clinical study, men who were at least 

30 pounds overweight lost an average of 2 pounds 

per week.’’ 

74Even truthful consumer testimonials provide 

only marginally useful information to consumers. In 

general, it is impossible for consumers to verify the 

reported experiences. Indeed, even the 

testimonialist may incorrectly attribute the 

performance benefit to the product. The additional 

disclosures will, on the whole, provide more useful 

information to consumers than the ritualistic 

‘‘results not typical’’ disclaimers, even if they are 

not without some flaws. 

75If the advertiser does not yet have sufficient 

information as to the results consumer can 

generally expect to achieve with its product, it can 

still use general testimonials –i.e., testimonials that 

do not make specific performance claims – 

provided the net takeaway of the ad is not 

misleading. For example, a testimonialist might 

praise the taste of a company’s reduced calorie 

foods, or the fact that a particular exercise video 

was the ‘‘best ever.’’ 

asserted that any disclosure that 

attempted to explain all the factors that 

could affect the results consumers could 

generally expect from the advertised 

product could itself be deceptive.67 In 

the end, the commenters contend, 

advertisers would either incur 

substantial costs trying to create 

substantiation that will meet the 

Commission’s approval or cease using 

truthful, aspirational testimonials.68

Based on these considerations, the 

commenters maintain that the FTC 

should continue to allow disclaimers of 

typicality.69

At the outset, the Commission notes 

that some of the comments misread the 

proposed revisions to Section 255.2 as 

requiring them to determine with 

precision what ‘‘the typical consumer’’ 

would achieve with the product.70 This 

is not what the Commission intends. 

Advertisers are not required to 

identify a ‘‘typical consumer’’ of their 

product and then determine what result 

that consumer achieved. Rather, the 

required disclosure in this circumstance 

is ‘‘the generally expected performance 

in the depicted circumstances.’’Thus, 

advertisers are provided some 

reasonable leeway to make this 

disclosure. For example, the term 

‘‘generally expected results’’ is used 

rather than ‘‘average’’ in order to convey 

that this disclosure would not have to 

be based on an exact mathematical 

average of users of the product, such as 

might be developed from a valid survey 

of actual users. For example, 

substantiation for a ‘‘generally expected 

results’’ disclosure could be 

extrapolated from valid, well-controlled 

clinical studies of patients matching the 

profile of the persons in the ad, even 

though consumers’ real world results 

are not likely to match exactly the 

results in the clinical study.71 In some 

instances, advertisers may rely on 

generally accepted scientific principles 

(e.g., the average individual needs a net 

calorie deficit of 3,500 calories to lose 

1 pound) to determine generally 

expected results. 

In other cases, the advertiser may be 

able to limit the scope of the disclosure 

by limiting the circumstances depicted 

in the advertisement. For example, if all 

of the testimonials used in an 

advertisement are clearly identified as 

persons who have been members of a 

weight loss clinic for at least one year, 

the disclosure can be based on 

performance data from that group.72 In 

any event, the disclosure of generally 

expected results should clearly identify 

the group from which the data were 

obtained.73

The Commission recognizes that 

differences in physiology and 

commitment will affect the results that 

individual consumers will get from a 

particular weight loss or fitness product 

or program. The proposed revisions to 

Section 255.2 do not prescribe a 

uniform one-size-fits-all disclaimer, 

however, and an advertiser could take 

these factors into consideration in 

crafting a disclosure. With meaningful 

disclosures, consumers not only would 

have a realistic sense of what they can 

expect from a product or service, but 

could also take away the message that 

if they dedicate themselves as much as 

the testimonialist did, they might 

achieve even more.74

Nevertheless, as the Commission 

recognized in the November 2008 

FEDERAL REGISTER notice, 73 FR at 

72382, some advertisers may not have 

the information available to them to be 

able to disclose the generally expected 

performance of their product or service 

to consumers. In these cases, advertisers 

using testimonials need either to 

exercise care not to convey a typicality 

claim, or to rely on statements of general 

endorsement of the product, e.g., ‘‘I’ve 

tried many products and this was the 

best.’’75

Disclosing the results consumers can 

generally expect from the advertised 

product under the circumstances 

depicted in the ad will entail costs 

associated with the data collection and 

analysis. Those costs, however, are no 

different from what the advertiser 

would incur if it made the same 

performance claim directly, rather than 

though a testimonial, and there is no 

reason why the substantiation 

requirements should differ between the 

two forms of advertising if the message 

conveyed to consumers is the same. Nor 

is there any reason why a new company 

that might not yet have data showing 

how well its product performs should 

be allowed to convey a performance 

claim through testimonials that it would 

not be able to substantiate if it made that 

claim directly. 

The effect of the revision at issue is 

to treat ads that use testimonials the 

same as all other ads. Section 5 of the 

FTC Act requires advertisers to have 

substantiation for the messages that 

consumers reasonably take from their 

ads, which means they must first know 

what messages consumers take away 

from those ads. The Commission sees no 


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76NAR, at 2. 

77 Id. 

78Because of the specialized nature of some of the 

products that this organization might review, 

readers of its membership publication might view 

it as having expertise in these products. In that case, 

the organization would have to use an expert (who 

could be a staff member), or ‘‘standards previously 

adopted by the organization and suitable for judging 

the relative merits of such products.’’16 CFR 255.4. 

reason why an advertiser should be 

exempt from those basic obligations 

simply because it chooses to 

communicate its claims through the use 

of testimonials; yet, that is precisely the 

effect of the safe harbor afforded by the 

1980 Guides. Accordingly, the 

Commission concludes that the safe 

harbor for non-typical testimonials 

accompanied by disclaimers of 

typicality should be eliminated, and the 

revisions to Section 255.2 of the Guides 

that were proposed in the November 

2008 FEDERAL REGISTER notice should be 

adopted in final form without further 

revision, except for the addition of the 

phrase ‘‘or service’’ in Section 255.2(b) 

and the revisions to news Example 4 

and 7 discussed below. 

4. Revisions to Examples 4 and 7 in 

Section 255.2 

The Commission is modifying and 

expanding a new example proposed in 

November 2008 in which a 

testimonialist touts the results she 

achieved using a product called 

WeightAway under an extreme regimen 

(exercising 6 hours daily and eating 

nothing but raw vegetables). Two new 

fact patterns added to the example 

demonstrate how the description of the 

circumstances under which a 

testimonialist achieved her results can 

determine the information that should 

be disclosed in the advertisement. 

Thus, when the ad just features 

‘‘before’’ and ‘‘after’’ pictures with the 

caption ‘‘I lost 50 pounds in 6 months 

with WeightAway,’’ the ad is likely to 

convey that her experience is 

representative of what consumers will 

generally achieve. Therefore, if 

consumers cannot generally expect to 

achieve such results, the ad should 

clearly and conspicuously disclose what 

they can expect to lose in the depicted 

circumstances (e.g., ‘‘most women who 

use WeightAway for 6 months lose at 

least 15 pounds’’). Similarly, if the 

testimonialist in an ad with those two 

pictures simply says, ‘‘I lost 50 pounds 

with WeightAway’’ without any 

mention of how long it took to achieve 

those results, and WeightAway users 

generally do not lose 50 pounds, the ad 

should disclose what results they do 

generally achieve (e.g., ‘‘most women 

who use WeightAway lose 15 pounds’’). 

In November 2008, the Commission 

also proposed a new Example 7 to 

Section 255.2, in which theater patrons 

express their views about a movie they 

have just seen. The example stated that 

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 this advertisement is not likely 

to convey a typicality message.’’The 

Commission is revising this example to 

explain that the reason no typicality 

message would be conveyed is that the 

patrons’ statements would be 

understood to be the subjective personal 

opinions of only three people. 

F. Section 255.3 – Expert Endorsements 

Although no comments addressed this 

particular example, the Commission has 

decided to revise proposed new 

Example 6 to Section 255.3 because it 

could erroneously be read to suggest 

that a medical doctor or comparably 

qualified expert could properly make 

performance claims for a cholesterollowering drug based solely on consumer 

letters and the results of a study using 

an animal model. As revised, the 

example states that the doctor’s 

endorsement would likely be deceptive 

because those materials are not what 

others with the same level of expertise 

would consider adequate to support 

those claims. 

G. Comments Addressing Section 255.4 

of the Guides – Endorsements by 

Organizations 

Although the Commission’s 

November 2008 FEDERAL REGISTER

notice did not propose any changes to 

Section 255.4 of the Guides, one 

commenter asked a question about that 

provision, which states that ‘‘an 

organization’s endorsement must be 

reached by a process sufficient to ensure 

that the endorsement fairly reflects the 

collective judgment of the organization’’ 

(emphasis added).76 Specifically, the 

commenter requested confirmation that 

action by an organization’s governing 

body, such as its Board of Directors, is 

not the kind of ‘‘collective judgment’’ 

required, and that ‘‘an objective 

evaluation by a qualified and competent 

organization staff person, or group of 

staff members, is sufficient.’’77

The Commission agrees that an 

organization’s governing body need not 

necessarily participate in the process; 

however, the decision of a single staff 

person might not be sufficient to ensure 

that the process reflects the 

organization’s ‘‘collective judgment’’ 

and certainly might not be ‘‘generally 

free of the sort of subjective factors that 

vary from individual to individual.’’ 16 

C.F.R § 255.4. 

The organization should have a 

process in place to ensure that its 

endorsements reflect the ‘‘collective 

judgment of the organization.’’ For 

example, the organization’s 

management could adopt specific 

procedures and standards to be applied 

in the review process, including, for 

example, clear statements concerning 

the qualification of the individual(s) 

conducting the review,78 the criteria 

against which products are to be judged, 

and any other requirements or 

prohibitions management deems 

appropriate (e.g., prohibitions against 

staff members reviewing products in 

which they have a financial interest). 

The Commission is also deleting an 

unnecessary cross-reference to Section 

255.3 that previously appeared at the 

end of the example to Section 255.4. 

H. Comments Addressing Revisions to 

Section 255.5 of the Guides – Disclosure 

of Material Connections Between 

Advertisers and Endorsers 

The comments filed in response to the 

November 2008 FEDERAL REGISTER

notice raise a number of issues 

concerning the disclosure of material 

connections between advertisers and 

endorsers: (1) whether, in the case of 

new, consumer-generated media, the 

disclosure obligation falls upon the 

advertiser or the endorser, and to the 

extent that the disclosure obligation 

falls on the endorser, whether the 

advertiser is potentially liable if the 

endorser fails to make that disclosure; 

(2) whether simply receiving a product, 

without any accompanying monetary 

payment, triggers a disclosure 

obligation; and (3) the potential 

implications of the Commission’s 

proposed new Example 3 concerning 

celebrity endorsements in 

nontraditional media, and proposed 

new Examples 7-9, in which the 

obligation to disclose material 

connections is applied to endorsements 

made through certain new media. 

1. Obligation to Disclose Material 

Connections in Endorsements Conveyed 

Through New Consumer-Generated 

Media 

When the Commission adopted the 

Guides in 1980, endorsements were 

disseminated by advertisers – not by the 

endorsers themselves – through such 

traditional media as television 

commercials and print advertisements. 

With such media, the duty to disclose 

material connections between the 

advertiser and the endorser naturally 

fell on the advertiser. 


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79The Commission’s view that these endorsers 

have an obligation to disclose material connections 

with their sponsoring advertisers should not be 

seen as reflecting a desire on the part of the 

Commission either to deter consumers from sharing 

their views about products they like with others or 

as an indication the Commission intends to target 

consumer endorsers who use these new forms of 

consumer-generated media. As with traditional 

media, the Commission’s law enforcement activities 

will continue to focus on advertisers. 

80WOMMA, at 7. 

81 Id. at 8. 

82BzzAgent, at 9 (stating that if consumers are 

under no obligation to say anything about the 

products they have received, the provision of those 

free samples might not be material to other 

consumers in evaluating that person’s opinion); 

PCPC, at 2 (acknowledging that receipt of product 

with high value, such as a car, would be material). 

83BzzAgent, at 7. 

84 Id. at 7-8. 

85If the blogger is actually paid by the advertiser 

or a third party acting on its behalf, disclosure 

certainly will be warranted. 

86Letter from Mary K. Engle, Associate Director 

for Advertising Practices, to Gary Ruskin, 

Commercial Alert, at 4 (Dec. 7, 2006) (‘‘[I]n some 

word of mouth marketing contexts, it would appear 

that consumers may reasonably give more weight to 

statements that sponsored consumers make about 

their opinions or experiences with a product based 

on their assumed independence from the marketer,’’ 

and that in those circumstances, ‘‘it would appear 

that the failure to disclose the relationship between 

the marketer and the consumer would be deceptive 

unless the relationship were otherwise clear from 

the context.’’) (footnote omitted). 

The recent creation of consumergenerated media means that in many 

instances, endorsements are now 

disseminated by the endorser, rather 

than by the sponsoring advertiser. In 

these contexts, the Commission believes 

that the endorser is the party primarily 

responsible for disclosing material 

connections with the advertiser. 

However, advertisers who sponsor these 

endorsers (either by providing free 

products – directly or through a 

middleman – or otherwise) in order to 

generate positive word of mouth and 

spur sales should establish procedures 

to advise endorsers that they should 

make the necessary disclosures and to 

monitor the conduct of those 

endorsers.79

The Commission notes in this regard 

that the Word of Mouth Marketing 

Association’s (‘‘WOMMA’’) code of 

ethics says that word of mouth 

advocates should disclose their 

relationship with marketers in their 

communications with other consumers; 

and that marketers should effectively 

monitor disclosure of their word of 

mouth advocates.80 The WOMMA Code 

also requires advocates to disclose the 

source of product samples or incentives 

received from marketers.81

The development of these new media 

has, however, highlighted the need for 

additional revisions to Section 255.5, to 

clarify that one factor in determining 

whether the connection between an 

advertiser and its endorsers should be 

disclosed is the type of vehicle being 

used to disseminate that endorsement – 

specifically, whether or not the nature 

of that medium is such that consumers 

are likely to recognize the statement as 

an advertisement (that is, as sponsored 

speech). Thus, although disclosure of 

compensation may not be required 

when a celebrity or expert appears in a 

conventional television advertisement, 

endorsements by these individuals in 

other media might warrant such 

disclosure. 

2. Does Receipt of a Product, Without 

Monetary Compensation, Constitute a 

Material Connection That Must Be 

Disclosed? 

Several commenters asked whether an 

advertiser’s provision of a free sample to 

a consumer in and of itself was a 

material connection that would have to 

be disclosed by that consumer and, if so, 

whether there was a monetary value 

associated with that item below which 

that obligation would not be triggered.82

One commenter asserted that modern 

companies that distribute product 

samples to promote word of mouth are 

analogous to companies that distribute 

free samples in grocery stores.83 That 

commenter further asserted that the 

Guides, as written, might cover both 

situations, even though neither 

distributor controls what is said about 

the products being distributed and the 

consumers are not compensated in 

either case.84

The threshold issue is whether the 

speaker’s statement qualifies as an 

‘‘endorsement,’’ under the Guides. If 

not, no disclosure need be made. 

However, if the statement does qualify 

as an ‘‘endorsement’’ under the 

construct set forth above for 

determining when statements in 

consumer-generated media will be 

deemed ‘‘sponsored’’ (see Section II.A.2 

of this notice), disclosure of the 

connection between the speaker and the 

advertiser will likely be warranted 

regardless of the monetary value of the 

free product provided by the 

advertiser.85 For example, an individual 

who regularly receives free samples of 

products for families with young 

children and discusses those products 

on his or her blog would likely have to 

disclose that he or she received for free 

the items being recommended. 

Although the monetary value of any 

particular product might not be 

exorbitant, knowledge of the blogger’s 

receipt of a stream of free merchandise 

could affect the weight or credibility of 

his or her endorsement – the standard 

for disclosure in Section 255.5 – if that 

connection is not reasonably expected 

by readers of the blog. Similarly, receipt 

of a single high-priced item could also 

constitute a material connection 

between an advertiser and a 

‘‘sponsored’’ endorser. 

Participants in network marketing 

programs are also likely to be deemed to 

have material connections that warrant 

disclosure. The Commission disagrees 

with the assertion that modern network 

marketing programs are just updated 

versions of traditional supermarket 

sampling programs. The primary goal of 

those programs was to have the shopper 

who tasted the advertiser’s product 

continue down the grocery store aisle 

and purchase the product. The primary 

goal of the new viral marketing 

programs is to have these individuals 

‘‘spread the word’’ about the product, so 

that other consumers will buy it. 

The Commission recognizes that, as a 

practical matter, if a consumer’s review 

of a product disseminated via one of 

these new forms of consumer-generated 

media qualifies as an ‘‘endorsement’’ 

under the construct articulated above, 

that consumer will likely also be 

deemed to have material connections 

with the sponsoring advertiser that 

should be disclosed. That outcome is 

simply a function of the fact that if the 

relationship between the advertiser and 

the speaker is such that the speaker’s 

statement, viewed objectively, can be 

considered ‘‘sponsored,’’ there 

inevitably exists a relationship that 

should be disclosed, and would not 

otherwise be apparent, because the 

endorsement is not contained in a 

traditional ad bearing the name of the 

advertiser.86

3. New Examples Applying Guide 

Principles Concerning Disclosure of 

Material Connection 

a. New Example 3 – Celebrity 

Endorsements in Nontraditional 

Contexts 

Several comments addressed 

proposed new Example 3, which 

applied the principles set forth in 

Section 255.5 to the situation in which 

a celebrity who has entered into a 

contract with a surgical clinic that calls 

for her to speak publicly about her own 

surgical experience praises that clinic 

during a television interview. The 

commenters stated that an advertiser 

cannot control what a celebrity says in 


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87PMA, at 15 (stating that celebrity may make 

statement that is unsubstantiated or unauthorized 

by contract). 

88PMA, at 16; see also AAAA/AAF, at 14-15 

(stating that it is inexplicable and unfair to impose 

a different disclosure requirement on celebrities in 

a non-traditional context than in traditional 

advertising context). 

89PMA, at 15; AAAA/AAF, at 15-16. 

90The celebrity, however, could still be liable for 

any misleading statements she made, or for her 

failure to disclose her relationship with the 

advertiser. 

91DMA, at 5; ANA, at 6-8; C of C, at 4-6; AAA/ 

AAF, at 16 (stating that it is unfair to put the burden 

of potential liability on bloggers and other viral 

marketers); ERA/CRN, at 36-38. 

92ANA, at 2; ERA/ERN, at 33-34. 

93IAB, at 2 (stating that the FTC should not adopt 

them, in light of ‘‘the evolving nature of the 

marketing industry and the need for further 

inquiry’’; ‘‘[e]stablishing new legal liabilities for 

marketers, publishers, and platform providers could 

restrict the supply of advertising revenue that is just 

beginning to flow into this nascent marketplace’’); 

C of C, at 5 (stating that new Examples 7, 8, and 

9 ‘‘raise significant issues regarding the scope of 

advertiser liability for third party activity in the 

context of new media and word-of-mouth 

marketing.’’); ERA/CRN, at 33 (stating that more 

discussion of these issues is needed first); see also 

ANA, at 5 (stating that the examples increase 

uncertainty by raising more questions than they 

answer); PMA, at 19 (stating that the Commission 

should not adopt them); BzzAgent, at 11-12 

(suggesting revisions); DMA, at 5 (stating that new 

media channels should be considered in separate 

proceeding that takes into account their unique 

characteristics); ERA/CRN, at 33, 35. 

94AAAA/AAF, at 18 (citing WOMMA guidelines); 

ERA/CRN, at 34 (same); see also ANA, at 1, 5 

(stating that the new examples interfere with selfregulation in this area). 

95Letter from Mary K. Engle, Associate Director 

for Advertising Practices, to Gary Ruskin, 

Commercial Alert, at 5 (Dec. 7, 2006)(noting that 

petitioners define ‘‘buzz marketing’’ as that in 

which marketers compensate consumers for 

disseminating messages to other consumers, 

without disclosing the marketer’s relationship with 

the consumer). Indeed, the references to the Guides 

in the staff’s letter suggested that the Guides’ 

principles are applicable to these new marketing 

tools. 

96The Commission’s views as to the vibrancy of 

these new media and the importance of having law 

enforcement to support industry self-regulation are 

discussed in Part II.A.2 above. 

a given interview, or whether the 

celebrity (or the interviewer) will make 

the necessary disclosure; therefore, they 

argue, the advertiser should not be 

liable either for misstatements made by 

the celebrity or for the failure of the 

relationship between the endorser and 

the advertiser to be disclosed.87 One 

commenter also noted that the 

disclosure of the connection between 

the advertiser and the celebrity is 

unnecessary because ‘‘if most people 

understand that celebrities are paid for 

touting products in advertisements, it 

stands to reason they also understand 

the nature of a paid spokesperson’s 

relationship with advertisers.’’88

Commenters also noted that even if the 

celebrity disclosed his or her 

relationship with the advertiser, the 

show’s producers could edit that 

disclosure out of the final version of the 

program that was ultimately aired. 

Imposing liability on the advertiser in 

such a situation, they contend, would be 

unfair.89

The Commission disagrees with the 

contention that disclosure in new 

Example 3 of the relationship between 

the celebrity and the clinic is 

unnecessary. Disclosure is appropriate 

because given the medium in which the 

celebrity praises the clinic – a talk 

show, not a conventional advertisement 

– consumers might not realize that the 

celebrity was a paid endorser, rather 

than just a satisfied customer. 

The commenters are correct, however, 

that an advertiser does not have control 

over what a celebrity says in an 

interview. Nor can the advertiser 

prevent the producers of that program 

from editing out of the final version of 

the interview a disclosure that would 

have been sufficient to inform viewers 

of the celebrity’s contractual 

relationship with the advertiser. 

However, if the advertiser has decided 

that it is advantageous to have the 

celebrity speak publicly about its 

product or service, the Commission 

believes that the advertiser has the 

concomitant responsibility to advise the 

celebrity in advance about what he or 

she should (and should not) say about 

that product or service, and about the 

need to disclose their relationship in the 

course of the interview. 

Evidence that the advertiser did so 

would provide a strong argument for the 

exercise of the Commission’s 

prosecutorial discretion in the event the 

celebrity failed to disclose his or her 

relationship with the advertiser or made 

unauthorized claims about the 

advertiser’s product,90 or if the celebrity 

properly disclosed the relationship but 

that disclosure was ultimately edited 

out of the program. Because the 

Commission considers each 

advertisement on a case-by-case basis, 

the particular facts of each situation 

would be considered in determining 

whether law enforcement action would 

be appropriate. 

b. Examples 7-9 – New Media 

Several commenters raised questions 

about, or suggested revisions to, 

proposed new Examples 7-9 in Section 

255.5, in which the obligation to 

disclose material connections is applied 

to endorsements made through certain 

new media.91 Two commenters argued 

that application of the principles of the 

Guides to new media would be 

inconsistent with the Commission’s 

prior commitment to address word of 

mouth marketing issues on a case-bycase basis.92 Others urged that they be 

deleted in their entirety from the final 

Guides, either because it is premature 

for the Commission to add them, or 

because of the potential adverse effect 

on the growth of these (and other) new 

media.93 Two commenters said that 

industry self-regulation is sufficient.94

The Commission’s inclusion of 

examples using these new media is not 

inconsistent with the staff’s 2006 

statement that it would determine on a 

case-by-case basis whether law 

enforcement investigations of ‘‘buzz 

marketing’’ were appropriate.95 All 

Commission law enforcement decisions 

are, and will continue to be, made on a 

case-by-case basis, evaluating the 

specific facts at hand. Moreover, as 

noted above, the Guides do not expand 

the scope of liability under Section 5; 

they simply provide guidance as to how 

the Commission intends to apply 

governing law to various facts. In other 

words, the Commission could challenge 

the dissemination of deceptive 

representations made via these media 

regardless of whether the Guides 

contain these examples; thus, not 

including the new examples would 

simply deprive advertisers of guidance 

they otherwise could use in planning 

their marketing activities.96

The Commission is not restating here 

all of the individual questions and 

criticisms raised by the commenters 

with respect to these three examples. As 

noted above, a marketer presumably 

would not have initiated the process 

that led to endorsements being made in 

these new media had it not concluded 

that a financial benefit would accrue 

from doing so. Therefore, it is 

responsible for taking the appropriate 

measures to prevent those endorsements 

from deceiving consumers. The 

Commission is revising Example 7, 

however, to clarify two points. First, the 

reason this endorser should disclose 

that he received the video game system 

for free – even though he is known as 

an expert in the video gaming 

community – is that his consumergenerated endorsement appears in a 

medium that does not make his 

association with the advertiser apparent 

to consumers. Second, as revised, 

Example 7 states more clearly that 

although the blogger has primary 

responsibility for disclosing that he 

received the video game system for free, 

the manufacturer has an obligation to 

advise the blogger at the time it provides 

the gaming system that he should make 

the disclosure in any positive reviews of 

the system. The manufacturer also 


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53136 Federal Register / Vol. 74, No. 198 / Thursday, October 15, 2009 / Rules and Regulations 

97C of C, at 6. 

98 Id. 

99 Id. 

100 See Example 1 to Section 255.0 (movie review 

becomes an endorsement only when it is used by 

the motion picture studio in its own advertisement). 

101The Commission’s view would be the same if 

the employee worked for an Internet news website 

with independent editorial responsibility, rather 

than a traditional brick-and mortar periodical. 

102WOMMA, at 9-10. 103 Cf. Eli Lilly, 133 F.T.C. 763, 767 (2002) 

(consent order) (although the disclosure of 

consumers’ personal information resulted from the 

actions of one employee, the Commission’s 

complaint makes it clear that the underlying cause 

was ‘‘[Lilly’s] failure to maintain or implement 

internal measures appropriate under the 

circumstances to protect sensitive consumer 

information.’’). 

104 See John Abramson & Barbara Starfield, ‘‘The 

Effect of Conflict of Interest on Biomedical Research 

and Clinical Practice Guidelines: Can We Trust the 

Evidence in Evidence-Based Medicine?,’’ J. Amer. 

Bd. Fam. Pract., Vol. 18 No. 5, 414-18 (Sept.-Oct. 

2005); see also Cary P. Gross, Yale Univ. Sch. Med., 

‘‘Conflict of Interest and Clinical Re$earch: Ethical 

and Regulatory Aspects of Clinical Research’’ 

(2009), (http://www.bioethics.nih.gov/hsrc/slides/ 

Gross%20NIH%20COI%202009%20draft%201.pdf) 

(last visited Oct. 1, 2009). 

should have procedures in place to 

attempt to monitor the blogger’s 

statements about the system to ensure 

that the proper disclosures are being 

made and take appropriate steps if they 

are not (e.g., cease providing free 

product to that individual). 

One commenter asked whether, if the 

blogger in Example 7 should disclose 

that he received the video game system 

for free, must every critic disclose that 

a reviewed item was provided for free?97

According to the commenter, reviewers 

in traditional media do not have to 

disclose this information, and reviewers 

in nontraditional media platforms such 

as blogs, online discussion boards, and 

street teams should not be treated any 

differently.98 This commenter also 

noted that given marketers’ lack of 

control over ‘‘what employees say on 

online discussion boards, or what street 

team members say to their friends,’’ it 

would be impracticable for them to 

ensure that material connections are 

disclosed in endorsements made using 

these media, and unclear what steps 

marketers would have to take to prevent 

endorsers from failing to disclose 

material connections with the 

marketer.99

The Commission acknowledges that 

bloggers may be subject to different 

disclosure requirements than reviewers 

in traditional media. In general, under 

usual circumstances, the Commission 

does not consider reviews published in 

traditional media (i.e., where a 

newspaper, magazine, or television or 

radio station with independent editorial 

responsibility assigns an employee to 

review various products or services as 

part of his or her official duties, and 

then publishes those reviews) to be 

sponsored advertising messages. 

Accordingly, such reviews are not 

‘‘endorsements’’ within the meaning of 

the Guides.100 Under these 

circumstances, the Commission 

believes, knowing whether the media 

entity that published the review paid for 

the item in question would not affect 

the weight consumers give to the 

reviewer’s statements.101 Of course, this 

view could be different if the reviewer 

were receiving a benefit directly from 

the manufacturer (or its agent). 

In contrast, if a blogger’s statement on 

his personal blog or elsewhere (e.g., the 

site of an online retailer of electronic 

products) qualifies as an ‘‘endorsement’’ 

–i.e., as a sponsored message – due to 

the blogger’s relationship with the 

advertiser or the value of the 

merchandise he has received and has 

been asked to review by that advertiser, 

knowing these facts might affect the 

weight consumers give to his review. 

With respect to Example 8, one 

commenter asserted that if the employer 

has instituted policies and practices 

concerning ‘‘social media participation’’ 

by its employees, and the employee fails 

to comply with such policies and 

practices, the employer should not be 

subject to liability.102 The Commission 

agrees that the establishment of 

appropriate procedures would warrant 

consideration in its decision as to 

whether law enforcement action would 

be an appropriate use of agency 

resources given the facts set forth in 

Example 8. Indeed, although the 

Commission has brought law 

enforcement actions against companies 

whose failure to establish or maintain 

appropriate internal procedures resulted 

in consumer injury, it is not aware of 

any instance in which an enforcement 

action was brought against a company 

for the actions of a single ‘‘rogue’’ 

employee who violated established 

company policy that adequately covered 

the conduct in question.103

The Commission does not believe, 

however, that it needs to spell out the 

procedures that companies should put 

in place to monitor compliance with the 

principles set forth in the Guides; these 

are appropriate subjects for advertisers 

to determine for themselves, because 

they have the best knowledge of their 

business practices, and thus of the 

processes that would best fulfill their 

responsibilities. 

4. Example 1 (sponsorship of clinical 

trials) 

In response to the Commission’s 

January 2007 FEDERAL REGISTER notice 

seeking comment on the overall costs, 

benefits, and regulatory and economic 

impact of the Guides, 72 FR 2214 (Jan. 

18, 2007), the Attorneys General of 33 

States and Territories and Hawaii’s 

Office of Consumer Protection 

(collectively, the ‘‘Attorneys General’’) 

suggested that a new provision be added 

stating that when an ad relies on a study 

that was sponsored by the advertiser 

itself, the ad should clearly disclose this 

information. 73 FR at 72390. The 

Attorneys General also pointed out that 

although the Guides require disclosure 

of material connections between 

endorsers and advertisers, Example 1 to 

Section 255.5 stated that an advertiser’s 

payment of expenses to an outside 

entity that conducted a study 

subsequently touted by the advertiser as 

the findings of a research organization 

need not be disclosed, an outcome the 

Attorneys General thought was 

inconsistent with the general principles 

of Section 255.5. 

Although the Commission did not 

propose substantive changes to Example 

1 in November 2008, it now has 

reconsidered its previous conclusion 

that knowledge of the advertiser’s 

sponsorship of the research would not 

materially affect the weight consumers 

would place on the reported results. 

Consumers reasonably can be more 

skeptical about research conducted by 

outside entities but funded by the 

advertiser than about studies that are 

both conducted and funded 

independently, because financial 

interest can create bias (intentional or 

unintentional) in the design of a 

study.104 Accordingly, the Commission 

now is revising Example 1 to call for 

disclosure of the relationship between 

the advertiser and the research 

organization. 

III. SECTION-BY-SECTION REVIEW 

OF ADDITIONAL CHANGES TO 

PROPOSED GUIDES PUBLISHED IN 

NOVEMBER 2008 

A. Section 255.0 

The Commission is adding the 

following new Example 8 to Section 

255.0: 

Example 8: 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. She writes in her 

personal blog that the change in diet has 

made her dog’s fur noticeably softer and 

shinier, and that in her opinion, the new 

food definitely is worth the extra 

money. This posting would not be 

deemed an endorsement under the 

Guides. 


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Assume that rather than purchase the 

dog food with her own money, the 

consumer gets it for free because the 

store routinely tracks her purchases and 

its computer has generated a coupon for 

a free trial bag of this new brand. Again, 

her posting would not be deemed an 

endorsement under the Guides. 

Assume now that the consumer joins 

a network marketing program under 

which she periodically receives various 

products about which she can write 

reviews if she wants to do so. If she 

receives a free bag of the new dog food 

through this program, her positive 

review would be considered an 

endorsement under the Guides. 

B. Section 255.1 

The Commission is deleting from 

Section 255.1(a) the proposed crossreference to the proposed new Example 

3 in Section 255.3. The Commission is 

also revising the proposed new Example 

3 in Section 255.1 by adding the 

following cross-reference: ‘‘[See Section 

255.3 regarding the product evaluation 

that an expert endorser must conduct.]’’ 

The Commission is revising the fifth 

and sixth sentences in proposed new 

Example 5 to clarify that the advertiser 

and the blogger both are subject to 

liability for misleading or 

unsubstantiated representations made in 

the course of the blogger’s endorsement. 

C. Section 255.2 

The Commission is adding the phrase 

‘‘or service’’ before the phrase ‘‘in 

actual, albeit variable, conditions of 

use’’ in the first sentence of Section 

255.2(b). 

The Commission also is replacing the 

proposed new Example 4 with the 

following: 

Example 4: An advertisement for a 

weight-loss product features a formerly 

obese woman. She says in the ad, 

‘‘Every day, I drank 2 WeightAway 

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 woman’s experience, and 

such a result is within the range that 

would be generally experienced by an 

extremely overweight individual who 

consumed WeightAway shakes, only ate 

raw vegetables, and exercised as the 

endorser did. Because the endorser 

clearly describes the limited and truly 

exceptional circumstances under which 

she achieved her results, the ad is not 

likely to convey that consumers who 

weigh substantially less or use 

WeightAway 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 WeightAway 

together with diet and exercise, 

however, this description would not 

adequately alert consumers to the truly 

remarkable circumstances leading to her 

weight loss.) The advertiser must have 

substantiation, however, for any 

performance claims conveyed by the 

endorsement (e.g., that WeightAway is 

an effective weight loss product). 

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 

WeightAway,’’ the ad is likely to convey 

that her experience is representative of 

what consumers will generally achieve. 

Therefore, if consumers cannot 

generally expect to achieve such results, 

the ad should clearly and conspicuously 

disclose what they can expect to lose in 

the depicted circumstances (e.g., ‘‘most 

women who use WeightAway for six 

months lose at least 15 pounds’’). 

If the ad features the same pictures 

but the testimonialist simply says, ‘‘I 

lost 50 pounds with WeightAway,’’ and 

WeightAway users generally do not lose 

50 pounds, the ad should disclose what 

results they do generally achieve (e.g., 

‘‘most women who use WeightAway 

lose 15 pounds’’). 

The Commission is also revising the 

third sentence of the first paragraph of 

the proposed new Example 7 in Section 

255.2 to read as follows: ‘‘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.’’ 

C. Section 255.3 

In the second sentence of the 

proposed new Example 6, the 

Commission is revising the phrase ‘‘the 

endorsement would be deceptive 

assuming those materials are not’’ to 

‘‘the endorsement would likely be 

deceptive because those materials are 

not. . . .’’ 

D. Section 255.4 

The Commission is deleting the crossreference to Section 255.3 that 

previously appeared at the end of the 

example to Section 255.4. 

E. Section 255.5 

The Commission is revising Section 

255.5 to make it clear that the duty to 

disclose material connections between 

advertisers and endorsers may depend 

on the particular medium used to 

disseminate that endorsement. 

The Commission is revising the 

proposed new Example 3 by replacing 

the phrase ‘‘Consumers would not 

expect’’ with ‘‘Consumers might not 

realize,’’ and by adding a new 

hypothetical, in which the tennis player 

endorses the clinic via a posting on a 

social networking service. 

The Commission is also revising the 

proposed new Example 7, first to clarify 

that in the case of endorsements 

disseminated via consumer-generated 

media, the relationship between the 

advertiser and the endorser may not be 

apparent, thereby requiring disclosure 

by experts that might not otherwise be 

necessary, and second to make the 

advertiser’s obligations more apparent. 

Example 7: A college student who has 

earned a reputation as a video game 

expert maintains a personal weblog or 

‘‘blog’’ where he posts entries about his 

gaming experiences. Readers of his blog 

frequently seek his opinions about video 

game hardware and software. As it has 

done in the past, the manufacturer of a 

newly released video game system 

sends the student a free copy of the 

system and asks him to write about it on 

his blog. He tests the new gaming 

system and writes a favorable review. 

Because his review is disseminated via 

a form of consumer-generated media in 

which his relationship to the advertiser 

is not inherently obvious, readers are 

unlikely to know that he has received 

the video game system free of charge in 

exchange for his review of the product, 

and given the value of the video game 

system, this fact likely would materially 

affect the credibility they attach to his 

endorsement. Accordingly, the blogger 

should clearly and conspicuously 

disclose that he received the gaming 

system free of charge. The manufacturer 

should advise him at the time it 

provides the gaming system that this 

connection should be disclosed, and it 

should have procedures in place to try 

to monitor his postings for compliance. 

Finally, the Commission is revising 

the last two sentences of Example 1 to 

provide that an advertiser should 

disclose its payment of expenses to an 

outside entity that conducts a study 

subsequently touted by the advertiser: 

‘‘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 this 

advertisement.’’ 


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53138 Federal Register / Vol. 74, No. 198 / Thursday, October 15, 2009 / Rules and Regulations 

IV. REVISED ENDORSEMENT AND 

TESTIMONIAL GUIDES 

List of Subjects in 16 CFR Part 255 

Advertising, Consumer protection, 

Trade practices. 

■ Accordingly, for the reasons set forth 

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. 

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. 

Authority: 38 Stat. 717, as amended; 15 

U.S.C. 41 - 58. 

§ 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 

Guides do not purport to cover every 

possible use of endorsements in 

advertising. Whether a particular 

endorsement or testimonial is deceptive 

will depend on the specific factual 

circumstances of the advertisement at 

issue. 

(b) For purposes of this part, an 

endorsement means any advertising 

message (including verbal statements, 

demonstrations, or depictions of the 

name, signature, likeness or other 

identifying personal characteristics of 

an individual or the name or seal of an 

organization) 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. The party whose opinions, 

beliefs, findings, or experience the 

message appears to reflect will be called 

the endorser and may 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, 

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. 

Example 1: A film critic’s review of a 

movie is excerpted in an advertisement. 

When so used, the review meets the 

definition of an endorsement because it 

is viewed by readers as a statement of 

the critic’s own opinions and not those 

of the film producer, distributor, or 

exhibitor. Any alteration in or quotation 

from the text of the review that does not 

fairly reflect its substance would be a 

violation of the standards set by this 

part because it would distort the 

endorser’s opinion. [See § 255.1(b).] 

Example 2: A TV commercial depicts 

two women in a supermarket buying a 

laundry detergent. The women are not 

identified outside the context of the 

advertisement. One comments to the 

other how clean her brand makes her 

family’s clothes, and the other then 

comments that she will try it because 

she has not been fully satisfied with her 

own brand. This obvious fictional 

dramatization of a real life situation 

would not be an endorsement. 

Example 3: In an advertisement for a 

pain remedy, an announcer who is not 

familiar to consumers except as a 

spokesman for the advertising drug 

company praises the drug’s ability to 

deliver fast and lasting pain relief. He 

purports to speak, not on the basis of his 

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. 

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. Even though the message is not 

expressly declared to be the personal 

opinion of the driver, it may 

nevertheless constitute an endorsement 

of the tires. Many consumers will 

recognize this individual as being 

primarily a racing driver and not merely 

a spokesperson or announcer for the 

advertiser. Accordingly, they may well 

believe the driver would not speak for 

an automotive product unless he 

actually believed in what he was saying 

and had personal knowledge sufficient 

to form that belief. Hence, they would 

think that the advertising message 

reflects the driver’s personal views. This 

attribution of the underlying views to 

the driver brings the advertisement 

within the definition of an endorsement 

for purposes of this part. 

Example 5: A television 

advertisement for a particular brand of 

golf balls shows a prominent and wellrecognized professional golfer practicing 

numerous drives off the tee. This would 

be an endorsement by the golfer even 

though she makes no verbal statement 

in the advertisement. 

Example 6: An infomercial for a home 

fitness system is hosted by a wellknown entertainer. During the 

infomercial, the entertainer 

demonstrates the machine and states 

that it is the most effective and easy-touse home exercise machine that she has 

ever tried. Even if she is reading from 

a script, this statement would be an 

endorsement, because consumers are 

likely to believe it reflects the 

entertainer’s views. 

Example 7: A television 

advertisement for a housewares store 

features a well-known female comedian 

and a well-known male baseball player 

engaging in light-hearted banter about 

products each one intends to purchase 

for the other. The comedian says that 

she will buy him a Brand X, portable, 

high-definition television so he can 

finally see the strike zone. He says that 

he will get her a Brand Y juicer so she 

can make juice with all the fruit and 

vegetables thrown at her during her 

performances. The comedian and 

baseball player are not likely to be 

deemed endorsers because consumers 

will likely realize that the individuals 

are not expressing their own views. 

Example 8: 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. She writes in her 

personal blog that the change in diet has 

made her dog’s fur noticeably softer and 

shinier, and that in her opinion, the new 

food definitely is worth the extra 

money. This posting would not be 

deemed an endorsement under the 

Guides. 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 74, No. 198 / Thursday, October 15, 2009 / Rules and Regulations 53139 

Assume that rather than purchase the 

dog food with her own money, the 

consumer gets it for free because the 

store routinely tracks her purchases and 

its computer has generated a coupon for 

a free trial bag of this new brand. Again, 

her posting would not be deemed an 

endorsement under the Guides. 

Assume now that the consumer joins 

a network marketing program under 

which she periodically receives various 

products about which she can write 

reviews if she wants to do so. If she 

receives a free bag of the new dog food 

through this program, her positive 

review would be considered an 

endorsement under the Guides. 

§ 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 

§§ 255.2(a) and (b) regarding 

substantiation of representations 

conveyed by consumer endorsements. 

(b) The endorsement message need 

not be phrased in the exact words of the 

endorser, unless the advertisement 

affirmatively so represents. 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 on 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 § 255.1(b) regarding the ‘‘good 

reason to believe’’ 

requirement.](d)Advertisers are subject 

to liability for false or unsubstantiated 

statements made through endorsements, 

or for failing to disclose material 

connections between themselves and 

their endorsers [see § 255.5]. Endorsers 

also may be liable for statements made 

in the course of their endorsements. 

Example 1: A building contractor 

states in an advertisement that he uses 

the advertiser’s exterior house paint 

because of its remarkable quick drying 

properties and durability. This 

endorsement must comply with the 

pertinent requirements of Section 255.3 

(Expert Endorsements). 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 specify the 

paint and to subscribe to the views 

presented previously. 

Example 2: A television 

advertisement portrays a woman seated 

at a desk on which rest five unmarked 

computer keyboards. An announcer 

says, ‘‘We asked X, an administrative 

assistant for over ten years, to try these 

five unmarked keyboards and tell us 

which one she liked best.’’The 

advertisement portrays X typing on each 

keyboard and then picking the 

advertiser’s brand. The announcer asks 

her why, and X gives her reasons. This 

endorsement would probably not 

represent that X actually uses the 

advertiser’s keyboard at work. In 

addition, the endorsement also may be 

required to meet the standards of 

Section 255.3 (expert endorsements). 

Example 3: An ad for an acne 

treatment features a dermatologist who 

claims that the product is ‘‘clinically 

proven’’ to work. Before giving the 

endorsement, she 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. The 

dermatologist is subject to liability for 

the false statements she made in the 

advertisement. The advertiser is also 

liable for misrepresentations made 

through the endorsement. [See Section 

255.3 regarding the product evaluation 

that an expert endorser must conduct.] 

Example 4: A well-known celebrity 

appears in an infomercial for an oven 

roasting bag that purportedly cooks 

every chicken perfectly in thirty 

minutes. During the shooting of the 

infomercial, the celebrity watches five 

attempts to cook chickens using the bag. 

In each attempt, the chicken is 

undercooked after thirty minutes and 

requires sixty minutes of cooking time. 

In the commercial, the celebrity places 

an uncooked chicken in the oven 

roasting bag and places the bag in one 

oven. He then takes a chicken roasting 

bag from a second oven, removes from 

the bag what appears to be a perfectly 

cooked chicken, tastes the chicken, and 

says that if you want perfect chicken 

every time, in just thirty minutes, this 

is the product you need. A significant 

percentage of consumers are likely to 

believe the celebrity’s statements 

represent his own views even though he 

is reading from a script. The celebrity is 

subject to liability for his statement 

about the product. The advertiser is also 

liable for misrepresentations made 

through the endorsement. 

Example 5: A skin care products 

advertiser participates in a blog 

advertising service. The service matches 

up advertisers with bloggers who will 

promote the advertiser’s products on 

their personal blogs. The advertiser 

requests that a blogger try a new body 

lotion and write a review of the product 

on her blog. Although the advertiser 

does not make any specific claims about 

the lotion’s ability to cure skin 

conditions and the blogger does not ask 

the advertiser whether there is 

substantiation for the claim, in her 

review the blogger writes that the lotion 

cures eczema and recommends the 

product to her blog readers who suffer 

from this condition. The advertiser is 

subject to liability for misleading or 

unsubstantiated representations made 

through the blogger’s endorsement. The 

blogger also is subject to liability for 

misleading or unsubstantiated 

representations made in the course of 

her endorsement. The blogger is also 

liable if she fails to disclose clearly and 

conspicuously that she is being paid for 

her services. [See § 255.5.] 

In order to limit its potential liability, 

the advertiser should ensure that the 

advertising service provides guidance 

and training to its bloggers concerning 

the need to ensure that statements they 

make are truthful and substantiated. The 

advertiser should also monitor bloggers 

who are being paid to promote its 

products and take steps necessary to 

halt the continued publication of 

deceptive representations when they are 

discovered. 

§ 255.2 Consumer endorsements. 

(a) An advertisement employing 

endorsements by one or more 

consumers about the performance of an 

advertised product or service will be 

interpreted as representing that the 

product or service 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 such claims made through 

endorsements in the same manner the 

advertiser would be required to do if it 


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105The 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. 

Nonetheless, the Commission cannot rule out the 

possibility that a strong disclaimer of typicality 

could be effective in the context of a particular 

advertisement. 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. 

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 or service 

also will likely be interpreted as 

representing that the endorser’s 

experience is representative of what 

consumers will generally achieve with 

the advertised product or service 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.105

(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. 

Example 1: A brochure 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. 

The ad 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. 

Example 2: 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 company’s heat 

pump can generally expect. The 

advertiser does not have substantiation 

for that representation because, in fact, 

less 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. 

The ad is less likely to be deceptive if 

it clearly and conspicuously discloses 

the generally expected savings and the 

advertiser has 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.’’ 

Example 3: An advertisement for a 

cholesterol-lowering product features an 

individual who claims that his serum 

cholesterol went down by 120 points 

and does not mention 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 adequate 

substantiation that the product can 

produce the specific results claimed by 

the endorser (i.e., a 120-point drop in 

serum cholesterol without any lifestyle 

changes). 

Example 4: An advertisement for a 

weight-loss product features a formerly 

obese woman. She says in the ad, 

‘‘Every day, I drank 2 WeightAway 

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 woman’s experience, and 

such a result is within the range that 

would be generally experienced by an 

extremely overweight individual who 

consumed WeightAway shakes, only ate 

raw vegetables, and exercised as the 

endorser did. Because the endorser 

clearly describes the limited and truly 

exceptional circumstances under which 

she achieved her results, the ad is not 

likely to convey that consumers who 

weigh substantially less or use 

WeightAway 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 WeightAway 

together with diet and exercise, 

however, this description would not 

adequately alert consumers to the truly 

remarkable circumstances leading to her 

weight loss.)The advertiser must have 

substantiation, however, for any 

performance claims conveyed by the 

endorsement (e.g., that WeightAway is 

an effective weight loss product). 

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 

WeightAway,’’ the ad is likely to convey 

that her experience is representative of 

what consumers will generally achieve. 

Therefore, if consumers cannot 

generally expect to achieve such results, 

the ad should clearly and conspicuously 

disclose what they can expect to lose in 

the depicted circumstances (e.g., ‘‘most 

women who use WeightAway for six 

months lose at least 15 pounds’’). 

If the ad features the same pictures 

but the testimonialist simply says, ‘‘I 

lost 50 pounds with WeightAway,’’ and 

WeightAway users generally do not lose 

50 pounds, the ad should disclose what 

results they do generally achieve (e.g., 

‘‘most women who use WeightAway 

lose 15 pounds’’). 

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 actually 


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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. 

Example 6: An advertisement 

purports to portray a ‘‘hidden camera’’ 

situation in a crowded cafeteria at 

breakfast time. A spokesperson for the 

advertiser asks a series of actual patrons 

of the cafeteria for their spontaneous, 

honest opinions of the advertiser’s 

recently introduced breakfast cereal. 

Even though the words ‘‘hidden 

camera’’ are not displayed on the 

screen, and even though none of the 

actual patrons is specifically identified 

during the advertisement, the net 

impression conveyed to consumers may 

well be that these are actual customers, 

and not actors. If actors have been 

employed, this fact should be clearly 

and conspicuously disclosed. 

Example 7: 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. 

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, that arrangement 

should be clearly and conspicuously 

disclosed. [See § 255.5.] 

§ 255.3 Expert endorsements. 

(a) Whenever an advertisement 

represents, directly 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 he or she is represented as 

possessing with respect to the 

endorsement. 

(b) Although the expert may, in 

endorsing a product, take into account 

factors not within his or her expertise 

(e.g., matters of taste or price), the 

endorsement must be supported by an 

actual exercise of that expertise in 

evaluating product features or 

characteristics with respect to which he 

or she is expert and which are relevant 

to an ordinary consumer’s use of or 

experience with the product and are 

available to the ordinary consumer. This 

evaluation must have included an 

examination or testing of the product at 

least as extensive as someone with the 

same degree of 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, 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 he or she is 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 

§ 255.1(d) regarding the liability of 

endorsers.] 

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 he 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. 

Example 2: An endorser of a hearing 

aid is simply referred to as ‘‘Doctor’’ 

during the course of an advertisement. 

The ad likely implies that the endorser 

is a medical doctor with substantial 

experience in the area of hearing. If the 

endorser is not a medical doctor with 

substantial experience in audiology, the 

endorsement would likely be deceptive. 

A non-medical ‘‘doctor’’ (e.g., an 

individual with a Ph.D. in exercise 

physiology) or a physician without 

substantial experience in the area of 

hearing can endorse the product, but if 

the endorser is referred to as ‘‘doctor,’’ 

the advertisement must make clear the 

nature and limits of the endorser’s 

expertise. 

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 efficacy 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. 

Example 4: A manufacturer of a nonprescription 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. 

Example 5: A woman who is 

identified as the president of a 

commercial ‘‘home cleaning service’’ 

states in a television advertisement that 

the service uses a particular brand of 

cleanser, instead of leading competitors 

it has tried, because of this brand’s 

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 to the 

advertised cleanser, the service must, in 

fact, have such experience, and, on the 

basis of its expertise, it must have 

determined that the cleaning ability of 

the endorsed cleanser is at least equal 

(or superior, if such is the net 

impression conveyed by the 

advertisement) to that of leading 

competitors’ products with which the 

service has had experience and which 

remain reasonably available to it. 

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 


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accumulated experience in evaluating 

cleansers without having performed 

side-by-side or scientific comparisons. 

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 what 

others with the same degree of expertise 

would consider adequate to support this 

conclusion about the product’s safety 

and efficacy. 

§ 255.4 Endorsements by organizations. 

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 § 255.3 (expert endorsements), 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 

§ 255.1(d) regarding the liability of 

endorsers.] 

Example: A mattress seller 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. 

§ 255.5 Disclosure of material 

connections. 

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 (i.e., the 

connection is not reasonably expected 

by the audience), such connection must 

be fully disclosed. For example, when 

an endorser who appears in a television 

commercial is neither represented in the 

advertisement as an expert nor is known 

to a significant portion of the viewing 

public, then the advertiser should 

clearly and conspicuously disclose 

either the payment or promise of 

compensation prior to and in exchange 

for the endorsement or the fact that the 

endorser knew or had reason to know or 

to believe that if the endorsement 

favored the advertised product some 

benefit, such as an appearance on 

television, would be extended to the 

endorser. Additional guidance, 

including guidance concerning 

endorsements made through other 

media, is provided by the examples 

below. 

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 this 

advertisement. 

Example 2: A film star endorses a 

particular food product. The 

endorsement regards only points of taste 

and individual preference. This 

endorsement must, of course, comply 

with § 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. 

Example 3: 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 her career and 

during this time she has risen to her 

highest level ever in the rankings. She 

responds by attributing the 

improvement in her game to the fact 

that she is seeing the ball better than she 

used to, ever since having laser vision 

correction surgery at a clinic that she 

identifies by name. She continues 

talking about the ease of the procedure, 

the kindness of the clinic’s doctors, her 

speedy recovery, and how she can now 

engage in a variety of activities without 

glasses, including driving at night. The 

athlete does not disclose that, even 

though she does not appear in 

commercials for the clinic, she has a 

contractual relationship with it, and her 

contract pays her for speaking publicly 

about her surgery when she can do so. 

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 that 

the athlete has been engaged as a 

spokesperson for the clinic, this 

endorsement is likely to be deceptive. 

Furthermore, if consumers are likely to 

take away from her story that her 

experience was typical of those who 

undergo the same procedure at the 

clinic, the advertiser must have 

substantiation for that claim. 

Assume that instead of speaking about 

the clinic in a television interview, the 

tennis player touts the results of her 

surgery – mentioning the clinic by name 

– on a social networking site that allows 

her fans to read in real time what is 

happening in her life. Given the nature 

of the medium in which her 

endorsement is disseminated, 

consumers might not realize that she is 

a paid endorser. Because that 

information might affect the weight 

consumers give to her endorsement, her 

relationship with the clinic should be 

disclosed. 

Assume that during that same 

television interview, the tennis player is 

wearing clothes bearing the insignia of 

an athletic wear company with whom 

she also has an endorsement contract. 

Although this contract requires that she 

wear the company’s clothes not only on 

the court but also in public appearances, 

when possible, she does not mention 

them or the company during her 

appearance on the show. No disclosure 

is required because no representation is 

being made about the clothes in this 

context. 

Example 4: An ad for an anti-snoring 

product features a physician who says 

that he has seen dozens of products 

come on the market over the years and, 

in his opinion, this is the best ever. 

Consumers would expect the physician 

to be reasonably compensated for his 

appearance in the ad. Consumers are 

unlikely, however, to expect that the 

physician receives a percentage of gross 

product sales or that he owns part of the 

company, and either of these facts 


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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. 

Example 5: An actual patron of a 

restaurant, who is neither known to the 

public nor presented as an expert, is 

shown seated at the counter. He is asked 

for his ‘‘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 TV promotion of its new soy protein 

‘‘steak.’’ This notification would 

materially affect the weight or 

credibility of the patron’s endorsement, 

and, therefore, viewers of the 

advertisement should be clearly and 

conspicuously informed of the 

circumstances under which the 

endorsement was obtained. 

Assume, in the alternative, that the 

advertiser had not posted a sign on the 

door of the restaurant, but had informed 

all interviewed customers of the 

‘‘hidden camera’’ only after interviews 

were completed and the customers had 

no reason to know or believe that their 

response was being recorded for use in 

an advertisement. Even if patrons were 

also told that they would be paid for 

allowing the use of their opinions in 

advertising, these facts need not be 

disclosed. 

Example 6: An infomercial producer 

wants to include consumer 

endorsements for an automotive 

additive product featured in her 

commercial, but because the product 

has not yet been sold, there are no 

consumer users. The producer’s staff 

reviews the profiles of individuals 

interested in working as ‘‘extras’’ in 

commercials and identifies several who 

are interested in automobiles. The extras 

are asked to use the product for several 

weeks and then report back to the 

producer. They are told that if they are 

selected to endorse the product in the 

producer’s infomercial, they will receive 

a small payment. Viewers would not 

expect that these ‘‘consumer endorsers’’ 

are actors who were asked to use the 

product so that they could appear in the 

commercial or that they were 

compensated. Because the 

advertisement fails to disclose these 

facts, it is deceptive. 

Example 7: A college student who has 

earned a reputation as a video game 

expert maintains a personal weblog or 

‘‘blog’’ where he posts entries about his 

gaming experiences. Readers of his blog 

frequently seek his opinions about video 

game hardware and software. As it has 

done in the past, the manufacturer of a 

newly released video game system 

sends the student a free copy of the 

system and asks him to write about it on 

his blog. He tests the new gaming 

system and writes a favorable review. 

Because his review is disseminated via 

a form of consumer-generated media in 

which his relationship to the advertiser 

is not inherently obvious, readers are 

unlikely to know that he has received 

the video game system free of charge in 

exchange for his review of the product, 

and given the value of the video game 

system, this fact likely would materially 

affect the credibility they attach to his 

endorsement. Accordingly, the blogger 

should clearly and conspicuously 

disclose that he received the gaming 

system free of charge. The manufacturer 

should advise him at the time it 

provides the gaming system that this 

connection should be disclosed, and it 

should have procedures in place to try 

to monitor his postings for compliance. 

Example 8: An online message board 

designated for discussions of new music 

download technology is frequented by 

MP3 player enthusiasts. They exchange 

information about new products, 

utilities, and the functionality of 

numerous playback devices. 

Unbeknownst to the message board 

community, an employee of a leading 

playback device manufacturer has been 

posting messages on the discussion 

board promoting the manufacturer’s 

product. Knowledge of this poster’s 

employment likely would affect the 

weight or credibility of her 

endorsement. Therefore, the poster 

should clearly and conspicuously 

disclose her relationship to the 

manufacturer to members and readers of 

the message board. 

Example 9: A young man signs up to 

be part of a ‘‘street team’’ program in 

which points are awarded each time a 

team member talks to his or her friends 

about a particular advertiser’s products. 

Team members can then exchange their 

points for prizes, such as concert tickets 

or electronics. These incentives would 

materially affect the weight or 

credibility of the team member’s 

endorsements. They should be clearly 

and conspicuously disclosed, and the 

advertiser should take steps to ensure 

that these disclosures are being 

provided. 

By direction of the Commission. 

Donald S. Clark 

Secretary 

[FR Doc. E9–24646 Filed 10–14–09: 1:26 pm] 

Billing Code: 6750–01–S 


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