Dissenting Statement of Commissioner Christine S. Wilson 

Advance Notice of Proposed Rulemaking – Endorsements 

October 20, 2022 

Today the Commission votes to issue an Advance Notice of Proposed Rulemaking (“ANPR”) 

seeking comment on a proposed rule addressing fake and deceptive reviews and endorsements. 

The FTC has challenged these practices, and platforms have sought to combat them, but 

deception continues to flourish. I agree that these practices are unlawful, and I have supported 

the FTC’s enforcement and guidance in this area. Notably, the Commission recently authorized 

additional tools to address these issues — tools that we were chastised for not deploying sooner. 

Given recent deployment of those tools, as well as ongoing efforts to update our Endorsement 

Guides, I do not believe that initiating yet another Section 18 rulemaking is the best use of our 

scarce resources, particularly given the nature of the harm at issue here. And the opportunity cost 

of launching yet another rulemaking is high, because the division overseeing this rule is also 

charged with enforcement in the opioids arena. For these reasons, I dissent. 

I appreciate that our remedial authority is limited. The Commission cannot obtain civil penalties 

for first-time violations of Section 5 of the FTC Act, and the Supreme Court’s decision in AMG 

ended the Commission’s use of Section 13(b) to obtain equitable monetary relief.

1 But the harm 

that results from the deception at issue is speculative in nature. The ANPR acknowledges that 

redress in matters involving deceptive review practices can be difficult to calculate, and we know 

that many retailers and platforms have procedures in place to screen out and reject fake reviews. 

An endorsement or a review may sway a consumer to purchase a product or service, in part, and 

should be truthful. But, in cases involving deceptive endorsements or fake reviews, there often is 

no allegation that the product or service did not perform as represented. The endorsement or 

review in many cases is not the central claim.2 

Moreover, the Commission already has a multi-pronged strategy in place to combat this issue. To 

educate businesses regarding their obligations, the Commission has published Guides 

Concerning the Use of Endorsements and Testimonials (“Endorsement Guides”) and a 

companion business guidance piece. Earlier this year, the Commission sought comment on 

potential updates and revisions to the Endorsement Guides.3 In October 2021, the Commission 

issued a Notice of Penalty Offenses which, as explained in the ANPR, may enable the 

Commission to obtain civil penalties from marketers that use fake or deceptive endorsements or 

1 AMG Capital Mgmt., LLC v. FTC, 141 S. Ct. 1341 (2021). 2 Last year, the Commission issued a Notice of Penalty Offenses for earnings claims and later authorized an 

Advanced Notice of Proposed Rulemaking seeking comment on a proposed rule. I supported both of those 

recommendations. Earning claims relate to the core functionality and efficacy of the product or service being 

marketed. The claims addressed in the earnings claims Notice of Penalty Offenses and the ANPR are typically 

fraudulent and significant monetary harm often results from the deception. For that reason, I was comfortable 

seeking comment on that proposed rule. 

3 FTC Press Release: FTC Proposes to Strengthen Advertising Guidelines Against Fake and Manipulated Reviews 

(May 19, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/05/ftc-proposes-strengthen-advertisingguidelines-against-fake-manipulated-reviews. 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

reviews.4 Commissioner statements issued at that time lauded the resurrection of these types of 

Notices, describing them as unique tools that the Commission had allowed to languish and that 

would to allow staff to pursue the full range of actions against bad actors.5 While the ANPR now 

downplays their likely impact, the agency invested non-trivial resources in drafting the Notice of 

Penalty Offenses, identifying potential recipients, and serving it on more than 700 entities.6 

Rather than churning out another proposed rule, perhaps we should stay the course on these 

initiatives and devote the incremental resources to enforcement in other critical areas. 

The opportunity cost of yet another rulemaking should not be understated. Importantly, as noted 

above, the division that has responsibility for endorsements also oversees enforcement of the 

Opioid Addiction Recovery Fraud Prevention Act. Last year, after a 18 month delay not caused 

by staff, the Commission announced its first case under this statute.7 For the second consecutive 

year, deaths from overdoses rose dramatically and now exceed the country’s peak deaths from 

AIDS, car crashes, and guns.8 Our citizens who suffer from opioid addiction are some of the 

most vulnerable people in this country; we could use our power and authority to great benefit by 

devoting more resources to this area. 

Although I disagree with its issuance, it is worth noting that staff’s approach to this ANPR is 

laudable. Rather than employing an “everything but the kitchen sink” approach, the ANPR is 

carefully tailored to focus on practices that are likely to be clear violations of Section 5. For the 

reasons described in this statement, I cannot support its issuance. 

Accordingly, I dissent. 

4 See www.ftc.gov/enforcement/penalty-offenses/endorsements. 5 For example, Commissioner Chopra wrote that “this unique authority in consumer protection enforcement . . . that 

past Commissioners largely ignored, depriving our hard working staff of the ability to pursue the full range of 

actions against bad actors . . . is particularly important given the Supreme Court’s recent ruling in AMG Capital 

Management.” Rohit Chopra, Prepared Remarks of Commissioner Rohit Chopra, Regarding the Resurrection of the 

FTC’s Penalty Offense Authority to Deter False Claims by For-Profit Colleges (Oct. 6, 2012), 

https://www.ftc.gov/system/files/documents/public_statements/1597178/prepared_remarks_of_commissioner_chopr 

a_re_penalty_offense.pdf. He further observed that “[a]ctivating the FTC’s Penalty Offense Authority is one of 

many examples where the agency needs to put its tools to use, rather than letting them languish.” Id. Chair Khan 

agreed, tweeting that “@FTC is resurrecting its Penalty Offense Authority to put companies on notice that certain 

practices are unlawful and violators will be hit with significant financial penalties.” Lina Khan, @linakhanFTC, 

https://twitter.com/linakhanftc/status/1445816849430634496. The Notice of Penalty Offenses for endorsements was 

issued on Oct. 13, 2021. 

6 FTC Press Release, FTC Puts Hundreds of Businesses on Notice about Fake Reviews and other Misleading 

Endorsements (Oct. 13, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/10/ftc-puts-hundredsbusinesses-notice-about-fake-reviews-other-misleading-endorsements. 7 Christine S. Wilson, Concurring Statement of Commissioner Christine S. Wilson, R360 LLC (May 17, 2022), 

https://www.ftc.gov/system/files/ftc_gov/pdf/2022-05-17-R360-Commissioner-Wilson-Statement-FINAL.pdf 8 Noah Weiland and Margot Sanger-Katz, “Overdose Deaths Continue Rising, With Fentanyl and Meth Key 

Culprits, NY Times (May 11, 2022), https://www.nytimes.com/2022/05/11/us/politics/overdose-deaths-fentanylmeth.html?action=click&pgtype=Article&state=default&module=stylnopioid&variant=show®ion=MAIN_CONTENT_1&block=storyline_levelup_swipe_recirc. 

2