44288 Federal Register / Vol. 87, No. 142 / Tuesday, July 26, 2022 / Proposed Rules 

this service bulletin’’ or ‘‘the revision 6 date 

of this service bulletin,’’ this AD requires 

using ‘‘the effective date of this AD.’’ 

(2) Where circle symbol 1 of sheet 2 of 

Figures 172, 173, and 174 of Boeing Alert 

Service Bulletin 777–57A0050, Revision 6, 

dated August 18, 2021, points to the outboard 

side of rib no. 9 for the locate and cap seal 

task or the inspection task, as applicable, in 

step 1 of sheet 3, for this AD, circle symbol 

1 points to the seven fasteners located at the 

inboard side of rib no. 9. 

(3) Where circle symbol 1, next to the text 

‘‘7 locations,’’ of sheet 2 of Figure 175 and 

Figure 176 of Boeing Alert Service Bulletin 

777–57A0050, Revision 6, dated August 18, 

2021, points to the outboard side of rib no. 

9 for the locate and cap seal task or the 

inspection task, as applicable, in step 1 of 

sheet 3, for this AD, circle symbol 1, next to 

the text ‘‘7 locations,’’ points to the seven 

fasteners located at the inboard side of rib no. 

9. 

(4) Where circle symbol 1, next to the text 

‘‘7 locations,’’ of sheet 4 of Figure 179 and 

Figure 180 of Boeing Alert Service Bulletin 

777–57A0050, Revision 6, dated August 18, 

2021, points to the outboard side of rib no. 

9 for the locate and cap seal task or the 

inspection task, as applicable, in step 1 of 

sheet 6, for this AD, circle symbol 1, next to 

the text ‘‘7 locations,’’ points to the seven 

fasteners located at the inboard side of rib no. 

9. 

(i) Maintenance or Inspection Program 

Revision 

Within 60 days after the effective date of 

this AD, revise the existing maintenance or 

inspection program, as applicable, to 

incorporate the information for 28–AWL–31 

and 28–AWL–32 specified in Section D, 

‘‘Airworthiness Limitations-Systems,’’ 

including Subsections D.1, of Section 9, 

Airworthiness Limitations (AWLs) and 

Certification Maintenance Requirements 

(CMRs), D622W001–9, dated March 2022, of 

Boeing 777–200/200LR/300/300ER/777F 

Maintenance Planning Data (MPD) 

Document, except as specified in paragraph 

(j) of this AD. The initial compliance time for 

doing airworthiness limitation instructions 

(ALI) task 28–AWL–32 is at the applicable 

time specified in paragraph (i)(1) or (2) of this 

AD: 

(1) For airplanes having line numbers (L/ 

Ns) 1 through 503 inclusive: Within 3,750 

days after accomplishment of the actions 

specified in Boeing Service Bulletin 777– 

57A0050, or within 60 months after the 

effective date of this AD, whichever occurs 

later. 

(2) For airplanes having L/Ns 504 and 

subsequent: Within 3,750 days after the date 

of issuance of the original airworthiness 

certificate or the date of issuance of the 

original export certificate of airworthiness; or 

within 60 months after the effective date of 

this AD; whichever occurs later. 

(j) Exceptions to the AWLs 

The following exceptions apply to 28– 

AWL–31 and 28–AWL–32 of Section D, 

‘‘Airworthiness Limitations—Systems,’’ 

including Subsections D.1 of Section 9, 

Airworthiness Limitations (AWLs) and 

Certification Maintenance Requirements 

(CMRs), D622W001–9, dated March 2022, of 

Boeing 777–200/200LR/300/300ER/777F 

Maintenance Planning Data (MPD) 

Document. 

(1) In paragraph 1.i., change ‘‘Front Spar 

Bulkhead (Center Tank)’’ to ‘‘Front Spar 

Bulkhead (Center Wing Tank Fuel Quantity 

Greater than 12,400 Gallons).’’ 

(2) In paragraph 1.i.II, change ‘‘For 777– 

200, 777–200LR, 777–300, and 777–300ER 

airplanes, L/N 562 and on’’ to ‘‘L/N 562 and 

on, except 777F.’’ 

(3) In paragraph 1.i.III., change ‘‘For 777F 

airplanes, L/N 718 and on’’ to ‘‘For 777F 

airplanes.’’ 

(4) In paragraph 1.j., change ‘‘Rear Spar 

Bulkhead (Center Tank)’’ to ‘‘Rear Spar 

Bulkhead (Center Wing Tank Fuel Quantity 

Greater than 12,400 Gallons).’’ 

(k) No Alternative Actions, Intervals, or 

Critical Design Configuration Control 

Limitations (CDCCLs) 

After the existing maintenance or 

inspection program has been revised as 

required by paragraph (i) of this AD, no 

alternative actions (e.g., inspections), 

intervals, or CDCCLs may be used unless the 

actions, intervals, and CDCCLs are approved 

as an alternative method of compliance 

(AMOC) in accordance with the procedures 

specified in paragraph (m) of this AD. 

(l) Terminating Action for Certain 

Requirements of AD 2017–11–14 and AD 

2021–24–12 

(1) Accomplishment of the actions required 

by paragraph (g) of this AD terminates the 

requirements of paragraphs (g)(1), (i), and (j) 

of AD 2017–11–14. 

(2) Accomplishment of the revision 

required by paragraph (i) of this AD 

terminates the requirements of paragraphs 

(g)(6) and (h) of AD 2021–24–12. 

(m) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, Seattle ACO Branch, 

FAA, has the authority to approve AMOCs 

for this AD, if requested using the procedures 

found in 14 CFR 39.19. In accordance with 

14 CFR 39.19, send your request to your 

principal inspector or responsible Flight 

Standards Office, as appropriate. If sending 

information directly to the manager of the 

certification office, send it to the attention of 

the person identified in paragraph (n)(1) of 

this AD. Information may be emailed to: 9- 

ANM-Seattle-ACO-AMOC-Requests@faa.gov. 

(2) Before using any approved AMOC, 

notify your appropriate principal inspector, 

or lacking a principal inspector, the manager 

of the responsible Flight Standards Office. 

(3) An AMOC that provides an acceptable 

level of safety may be used for any repair, 

modification, or alteration required by this 

AD if it is approved by The Boeing Company 

Organization Designation Authorization 

(ODA) that has been authorized by the 

Manager, Seattle ACO Branch, FAA, to make 

those findings. To be approved, the repair 

method, modification deviation, or alteration 

deviation must meet the certification basis of 

the airplane, and the approval must 

specifically refer to this AD. 

(n) Related Information 

(1) For more information about this AD, 

contact Kevin Nguyen, Aerospace Engineer, 

Propulsion Section, FAA, Seattle ACO 

Branch, 2200 South 216th St., Des Moines, 

WA 98198; phone and fax: 206–231–3555; 

email: kevin.nguyen@faa.gov. 

(2) For service information identified in 

this AD, contact Boeing Commercial 

Airplanes, Attention: Contractual & Data 

Services (C&DS), 2600 Westminster Blvd., 

MC 110–SK57, Seal Beach, CA 90740–5600; 

telephone 562–797–1717; internet 

www.myboeingfleet.com. You may view this 

referenced service information at the FAA, 

Airworthiness Products Section, Operational 

Safety Branch, 2200 South 216th St., Des 

Moines, WA. For information on the 

availability of this material at the FAA, call 

206–231–3195. 

Issued on June 30, 2022. 

Christina Underwood, 

Acting Director, Compliance & Airworthiness 

Division, Aircraft Certification Service. 

[FR Doc. 2022–15848 Filed 7–25–22; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 255 

Guides Concerning the Use of 

Endorsements and Testimonials in 

Advertising 

AGENCY: Federal Trade Commission. 

ACTION: Proposed changes to guides; 

request for comments. 

SUMMARY: The Federal Trade 

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

is seeking public comment on proposed 

revisions to its Guides Concerning the 

Use of Endorsements and Testimonials 

in Advertising (‘‘the Guides’’). 

DATES: Comments must be received on 

or before September 26, 2022. 

ADDRESSES: Interested parties may file a 

comment online or on paper by 

following the instructions in the 

Invitation to Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘Endorsement Guides; 

P204500’’ on your comment and file 

your comment online at https://

www.regulations.gov. If you prefer to 

file your comment on paper, mail your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW, Suite CC–5610 (Annex B), 

Washington, DC 20580. 

FOR FURTHER INFORMATION CONTACT: 

Michael Ostheimer (202–326–2699), 

mostheimer@ftc.gov, Attorney, Division 

of Advertising Practices, Bureau of 

Consumer Protection, Federal Trade 

Commission, Room CC–10603, 600 


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1Approximately seventy-five comments were 

submitted by individual consumers, most of whom 

were apparently university students fulfilling class 

assignments. The remaining commenters were: 

American Influencer Council, Inc. (‘‘AIC’’); 

American Financial Services Association (‘‘AFSA’’); 

Amazon.com, Inc. (‘‘Amazon’’); Association of 

National Advertisers (‘‘ANA’’); BBB National 

Programs (‘‘BBB’’); Shirley Boyd, Esq. (‘‘Boyd’’); 

Campaign for a Commercial Free-Childhood and 

Center for Digital Democracy (‘‘CCFC’’); 

Competition and Markets Authority (‘‘CMA’’); 

Consumer Reports; Council for Responsible 

Nutrition (‘‘CRN’’); Common Sense Media (‘‘CSM’’); 

Consumer World (‘‘CW’’); Digital Content Next 

(‘‘DCN’’); Esports Bar Association (‘‘Esports Bar’’); 

Entertainment Software Association (‘‘ESA’’); Prof. 

Chris Jay Hoofnagle (‘‘Hoofnagle’’); Interactive 

Advertising Bureau (‘‘IAB’’); Jim Dudukovich, Esq. 

(‘‘Dudukovich’’); IZEA Worldwide, Inc. (‘‘IZEA’’); 

Kleinfeld, Kaplan and Becker LLP (‘‘KK&B’’); LEGO 

Group (‘‘LEGO’’); Maastricht University 

(‘‘Maastricht’’); Association of Magazine Media 

(‘‘MPA’’); North American Insulation Manufacturers 

Association (‘‘NAIMA’’); internet and Television 

Association (‘‘NCTA’’); NetChoice; News Media 

Continued 

Pennsylvania Avenue NW, Washington, 

DC 20580. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Overview of the Current Guides 

II. History of the Guides 

III. Discussion of Comments Received in 

Response to Regulatory Review Notice 

IV. Section-by-Section Description of 

Proposed Amendments 

V. Proposed Revised Endorsement and 

Testimonial Guides 

VI. Invitation to Comment 

I. Overview of the Current Guides 

The Guides, 16 CFR part 255, are 

designed to assist businesses and others 

in conforming their endorsement and 

testimonial advertising practices to the 

requirements of section 5 of the FTC 

Act. Although the Guides interpret laws 

administered by the Commission, and 

thus are advisory in nature, proceedings 

to enforce the requirements of law as 

explained in the Guides can be brought 

under the FTC Act. In any such 

proceeding, the Commission would 

have the burden of proving that a 

particular use of an endorsement or 

testimonial was deceptive under the 

law. 

The Guides define both endorsements 

and testimonials broadly to mean any 

advertising message that consumers are 

likely to believe reflects the opinions, 

beliefs, findings, or experience of a 

party other than the sponsoring 

advertiser. 16 CFR 255.0(b) and (c). The 

Guides state that endorsements must 

reflect the honest opinions, findings, 

beliefs, or experience of the endorser. 16 

CFR 255.1(a). Furthermore, 

endorsements may not contain any 

representations that would be deceptive, 

or could not be substantiated, if made 

directly by the advertiser. Id. The 

Guides state that an advertisement 

presenting consumer endorsements 

about the performance of an advertised 

product will be interpreted as 

representing that the product is effective 

for the purpose depicted in the 

advertisement. 16 CFR 255.2(a). They 

further advise that an advertisement 

employing a consumer endorsement on 

a central or key attribute of a product 

will be interpreted as representing that 

the endorser’s experience is 

representative of what consumers will 

generally achieve. 16 CFR 255.2(b). If an 

advertiser does not have adequate 

substantiation that the endorser’s 

experience is representative, the 

advertisement should clearly and 

conspicuously disclose what the 

generally expected performance would 

be in the depicted circumstances. Id. 

The Guides define an expert endorser 

as someone who, as a result of 

experience, study, or training, possesses 

knowledge of a particular subject that is 

superior to that generally acquired by 

ordinary individuals. 16 CFR 255.0(e). 

An expert endorser’s qualifications must 

in fact, give him or her the expertise that 

he or she is represented as possessing 

with respect to the endorsement. 16 CFR 

255.3(a). Moreover, an expert 

endorsement must be supported by an 

actual exercise of that expertise and the 

expert’s evaluation of the product must 

have been at least as extensive as 

someone with the same degree of 

expertise would normally need to 

conduct in order to support the 

conclusions presented. 16 CFR 255.3(b). 

The Guides advise that when there is 

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. 16 CFR 255.5. 

Among other things, the Guides also 

state that: (1) 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, 16 

CFR 255.1(c); (2) 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; and endorsers also may 

be liable for statements made in the 

course of their endorsements, 16 CFR 

255.1(d); (3) advertisements presenting 

endorsements by what are represented 

to be ‘‘actual consumers’’ should utilize 

actual consumers, or clearly and 

conspicuously disclose that the persons 

are not actual consumers, 16 CFR 

255.2(c); and (4) an organization’s 

endorsement must be reached by a 

process sufficient to ensure that the 

endorsement fairly reflects the 

collective judgment of the organization. 

16 CFR 255.4. 

II. History of the Guides 

In December 1972, the Commission 

published for public comment proposed 

Guides Concerning the Use of 

Endorsements and Testimonials in 

Advertising, 37 FR 25548 (Dec. 1, 1972). 

Interested parties submitted extensive 

comment. On May 21, 1975, the 

Commission promulgated, under the 

Federal Trade Commission Act (‘‘FTC 

Act’’), 15 U.S.C. 41–58, three sections of 

the 1972 proposal as final guidelines (16 

CFR 255.0, 255.3 and 255.4) and 

republished three others, in modified 

form, for additional public comment. 40 

FR 22127 (May 21, 1975). The 

Commission received public comment 

on the three re-proposed guidelines, as 

well as on one of the final guidelines. 

On January 18, 1980, the Commission 

promulgated three new sections as final 

guidelines (16 CFR 255.1, 255.2 and 

255.5) and modified an example to one 

of the final guidelines adopted in May 

1975 (16 CFR 255.0 Example 4). 45 FR 

3870 (Jan. 18, 1980). 

As part of its periodic regulatory 

review, the Commission sought public 

comment on the Endorsement Guides in 

January 2007. 72 FR 2214 (Jan. 18, 

2007). In November 2008, the 

Commission discussed the comments it 

received in 2007, proposed certain 

revisions to the Guides, and requested 

comment on those proposed revisions. 

73 FR 72374 (Nov. 28, 2008). In October 

2009, the Commission substantively 

amended the Guides, adding what are 

now 16 CFR 255.0(a), 255.1(d) and 

255.2(a), significantly modifying the 

guidance in 16 CFR 255.0(b), and 

modifying or adding numerous 

examples. 74 FR 53124 (Oct. 15, 2009). 

In February 2020, again as part of its 

ongoing regulatory review process, the 

Commission published a Federal 

Register notice seeking comment on the 

overall costs, benefits, and regulatory 

and economic impact of the Guides as 

well as a number of specific questions 

focused on the material connections 

section of the Guides (16 CFR 255.5). 85 

FR 10104 (Feb. 21, 2020). In light of the 

disruption caused by the Coronavirus 

pandemic, the Commission extended 

the comment period for two months. 85 

FR 19709 (Apr. 8, 2020). 

III. Overview of Comments Received in 

Response to Regulatory Review Notice 

The Commission received 108 unique 

substantive comments in response to its 

regulatory review notice.1 Having 


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Alliance (‘‘NMA’’); National Retail Federation 

(‘‘NRF’’); Performance-Driven Marketing Institute 

(‘‘PDMI’’); Pharmavite LLC (‘‘Pharmavite’’); 

Performance Marketing Association (‘‘PMA’’); 

Princeton University Center for Information 

Technology Policy and University of Chicago 

Department of Computer Science researchers 

(‘‘Princeton’’); SuperAwesome; and Truth in 

Advertising, Inc. (‘‘TINA’’). The comments are 

available online at https://beta.regulations.gov/ 

document/FTC-2020-0017-0001/comment. 

2See, e.g., Amazon at 3; ANA at 1–3; BBB at 2; 

CRN at 1; DCN at 1; Dudukovich at 3; Esports Bar 

at 2–3; ESA at 2; IAB at 1–2; IZEA at 1; LEGO at 

1; MPA at 2; NAIMA at 1–2; NCTA at 1–2; NMA 

at 2; and Pharmavite at 1. 

3See, e.g., Amazon at 3; ESA at 2; IAB at 2–3; 

MPA at 2; NCTA at 1–2; and PDMI at 2. 

4See, e.g., Boyd at 5–6, 16; Consumer Reports at 

2; IZEA at 1; NRF at 14; and TINA at 22–23. 

5See, e.g., AIC at 4–5; Amazon at 3; Dudukovich 

at 6; and IAB at 3. 

6See, e.g., Boyd at 5–7; Natalie Jacobwith at 3. 

7See, e.g., MPA at 4, 7–8; and NRF at 14. 

8See, e.g., AFSA at 2; AIC at 2–3; ANA at 5–6; 

Dudukovich at 11–12; IAB at 4; NCTA at 9; NRF 

at 9; PMA at 2; and Princeton at 5; see also CMA 

at 3. 

9Non-substantive changes to improve readability 

or to update examples to reflect changes in 

marketing methods, technology, or society that have 

occurred since the Guides were last updated or 

since they were first written (e.g., replacing 

‘‘brochure’’ with ‘‘web page’’) are not discussed 

below. 10See Boyd at 7. 11See, e.g., AIC at 1, 3; and Pharmavite at 2. 

12See, e.g., CRN at 2–4; Pharmavite at 1–2; PMA 

at 2; and Anna Keltner at 3. 

13See, e.g., ESA at 5–6; IAB at 2–3; and MPA at 

6–7. 

14See, e.g., Consumer Reports at 9; CRN at 2; 

Dudukovich at 9; Pharmavite at 1–2; and TINA at 

12. 

15See, e.g., ANA at 3; BBB at 3; and NCTA at 2. 

considered those comments and its own 

extensive consumer protection 

experience, the Commission now 

proposes various amendments to the 

Guides and invites comments on these 

proposed changes. 

Most commenters noted that the 

Guides are beneficial and should be 

retained,2 and none disagreed. Some 

comments praised the current Guides 

for striking an appropriate balance 

between protecting consumers and 

allowing advertisers to communicate 

creatively and effectively to potential 

customers.3

Most comments responded to specific 

questions the Commission posed in the 

February 2020 Federal Register notice 

about certain provisions of the current 

Guides. Those comments are discussed 

in Part IV, below, in the context of the 

specific Guide provisions to which they 

relate. 

In addition, some comments 

addressed other issues. For example, 

some commenters said that the 

Commission should engage in more 

vigorous enforcement activities related 

to the Guides 4 and greater educational 

efforts.5 Other commenters weighed in 

on whether the Commission should 6 or 

should not 7 engage in a rulemaking 

proceeding to convert some principles 

in the Guides into trade regulation rules. 

Some comments urged the 

Commission to encourage social media 

platforms to improve or standardize the 

built-in tools that some of them offer to 

facilitate disclosures of material 

connections by platform users.8 The 

Commission supports development of 

effective, built-in disclosure tools but is 

concerned that some of the existing ones 

are too poorly contrasting, fleeting, or 

small, or may be placed in locations 

where they do not catch the user’s 

attention. For example, a social media 

disclosure tool that superimposes a 

disclosure over a posted picture could 

be poorly contrasting, making the 

disclosure inadequate, especially if the 

picture is only displayed for a few 

seconds and contains competing text or 

other information. Similarly, a 

disclosure tool that superimposes a 

small disclosure in the bottom left 

corner of a video for only a few seconds 

is inconspicuous. Even a tool that 

employs a disclosure of sufficient size, 

duration, and contrast could be 

inadequate if it is displayed above, 

rather than below, a picture or video 

that catches the attention of users 

scrolling through their feeds. Platforms 

may be exposing endorsers to liability if 

users rely solely on a platform’s 

inadequate tools for their disclosures. 

Platforms may also be exposing 

themselves to liability depending on the 

representations they make about these 

tools. Given that platforms play a major 

role in disseminating and monetizing 

endorsements, and actively encourage 

endorsers to promote and amplify their 

posts, the Commission believes they 

should carefully evaluate their tools and 

what they say about them to ensure they 

are not exposing themselves or their 

users to liability. 

IV. Section-by-Section Discussion of 

Proposed Revisions to Guides, 

Comments Received in Response to 

February 2020 Federal Register Notice, 

and Requests for Additional Comment 

The Commission believes the Guides 

should be retained but a number of 

revisions are appropriate. Many of the 

proposed changes are simply 

clarifications or additional examples of 

the principles embodied in the existing 

Guides. Others enunciate basic 

principles not expressly set forth in the 

current Guides but are established in 

Commission enforcement actions. 

Several represent substantive changes 

from the current Guides, based upon 

increased knowledge of how consumers 

view endorsements and taking into 

consideration the comments submitted 

in response to the February 2020 

Federal Register notice. Some of the 

new examples and updates to existing 

examples reflect the extent to which 

advertisers have turned increasingly to 

the use of social media and product 

reviews to market their products. 

The Commission seeks comments on 

these proposed revisions, which are 

discussed below by Section.9

A. § 255.0—Purpose and Definitions 

The Guides currently begin with a 

purpose and definitions section. 

Current § 255.0(b) defines an 

‘‘endorsement’’ as any advertising 

message that consumers are likely to 

believe reflects the opinions, beliefs, 

findings, or experience of a party other 

than the sponsoring advertiser. As 

suggested in a comment, the 

Commission proposes revising that 

definition to clarify that ‘‘marketing’’ 

and ‘‘promotional’’ messages can be 

endorsements.10 When a social media 

user tags a brand in a post, it generally 

communicates that the poster uses or 

likes the brand, so, the revised 

definition would also indicate that tags 

in social media posts can be 

endorsements. Section 255.0(b) also 

currently states that an ‘‘endorser’’ may 

be an individual, group, or institution. 

The Commission proposes a 

modification indicating that an endorser 

could instead simply appear to be an 

individual, group, or institution. Thus, 

the Guides would clearly apply to 

endorsements by fabricated endorsers. 

The Commission proposes to add a 

footnote to § 255.0(b). It would indicate 

the availability of detailed staff business 

guidance regarding endorsements that is 

updated periodically, while noting that 

such staff guidance is not approved by 

or binding upon the Commission. 

Numerous commenters asked the 

Commission to update the Guides more 

frequently, such as every three years.11

Some commenters asked that the 

Commission provide detailed guidance 

in the Guides about acceptable and 

unacceptable language and placement 

for disclosures of material connections 

and their use on particular platforms,12

while others asked the Commission to 

continue to allow marketers flexibility 

in the crafting and placement of 

necessary disclosures.13 Commenters 

also differed on whether to incorporate 

FTC staff business guidance into the 

Guides, with some saying it would be 

useful 14 and others taking the position 

that the social media landscape is everchanging and the Guides should focus 

on general principles.15 One commenter 


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16See TINA at 12. 

17See Boyd at 7. 

18See Dudukovich at 17. 19See ANA at 8–9; and Dudukovich at 17–18. 

20See NAIMA at 5; see also Consumer Reports at 

4. 

21See Complaint at 5, FTC v. Devumi, LLC, No. 

9:19–cv–81419–RKA (S.D. Fla. Oct. 18, 2019), 

https://www.ftc.gov/system/files/documents/cases/ 

devumi_complaint.pdf. 

22See Consumer Reports at 9. 

suggested cross-referencing staff 

guidance in the Guides.16 The 

Commission believes that its current 

approach for endorsement-related 

guidance makes sense, with the Guides 

focused on general principles and 

examples, and the more informal and 

easily updated staff guidance focused on 

specific questions and issues that arise 

in this area. The new footnote would 

ensure that people reading the Guides 

are aware of this additional staff 

guidance. 

Current § 255.0(d) defines a ‘‘product’’ 

as any product, service, company or 

industry. At the suggestion of a 

commenter,17 the Commission proposes 

modifying the definition to clarify that 

a ‘‘product’’ includes a ‘‘brand.’’ 

In response to comments requesting 

further guidance on what constitutes a 

clear and conspicuous disclosure, the 

Commission proposes adding a new 

definition of ‘‘clear and conspicuous’’ in 

a new § 255.0(f). It would define a ‘‘clear 

and conspicuous’’ disclosure as a 

disclosure that ‘‘is difficult to miss (i.e., 

easily noticeable) and easily 

understandable by ordinary 

consumers.’’ It would give specific 

guidance with respect to visual and 

audible disclosures, stress the 

importance of ‘‘unavoidability’’ when 

the communication involves social 

media or the internet, and say that the 

disclosure should not be contradicted or 

mitigated by, or inconsistent with, 

anything in the communication. While 

not mandating that a disclosure be both 

visual and audible under all 

circumstances, it would say that when 

the triggering claim is visual the 

disclosure should be at least visual; that 

when the triggering claim is audible, the 

disclosure should be at least audible; 

that when the triggering claim is both 

visual and audible, the disclosure 

should be both; and that a simultaneous 

audible and visual disclosure is more 

likely to be clear and conspicuous. 

Finally, the proposed definition notes 

that when an endorsement targets a 

specific audience, such as older adults, 

its effectiveness will be evaluated from 

the perspective of members of that 

group. 

Example 1 to § 255.0 currently 

provides an example of an endorsement 

and illustrates the principle that an 

endorsement may not be presented out 

of context or reworded so as to distort 

the endorser’s opinion. One commenter 

noted that it was unclear in the example 

who distorted the endorser’s opinion.18

The Commission proposes to modify the 

example to clearly identify the 

responsible party. 

Current Example 5 to § 255.0 involves 

a television advertisement in which a 

professional golfer implicitly endorses a 

brand of golf balls by being shown 

practicing her swing using the balls, 

even though she says nothing in the ad. 

The Commission proposes expanding 

this example to illustrate that use of the 

same video footage in a social media 

post can be an endorsement as long as 

the endorsed brand is tagged or 

otherwise readily identifiable by 

viewers. 

Example 6 to § 255.0 currently 

illustrates how a paid actor hosting a 

product infomercial and reading from a 

script can still be making an 

endorsement. The Commission proposes 

adding a scenario to this example to 

show how the same actor can talk about 

the product without making an 

endorsement and deleting Example 7, 

which had also focused on illustrating 

statements that were not endorsements. 

Example 8 to § 255.0, which would be 

renumbered as Example 7, currently 

provides scenarios in which an 

individual consumer’s social media 

posts would and would not be 

considered endorsements. Two 

commenters asked for further 

explanation of the Commission’s 

reasoning.19 The Commission proposes 

to clarify the example. When a 

consumer buys the product with her 

own money under ordinary 

circumstances and chooses to post about 

it, the post is not an endorsement under 

the Guides because the consumer has no 

connection to the manufacturer beyond 

being an ordinary purchaser and her 

message cannot be attributed to the 

product’s manufacturer. The revised 

example would note that the same 

would be true for a consumer review. 

Furthermore, if the consumer received a 

coupon for a free trial product from the 

manufacturer simply based upon her 

purchase history and if the 

manufacturer did not ask coupon 

recipients for reviews, then the 

consumer’s unsolicited review would 

not be an endorsement because it cannot 

be attributed to the manufacturer. 

However, if the consumer received the 

free product as part of a marketing 

program that periodically provides free 

products from various manufacturers, 

where the consumer has the option of 

writing a review, the consumer’s review 

would be an endorsement because of 

her connection to the manufacturer 

through the marketing program. 

The Commission proposes adding six 

new examples to this section. New 

Example 8 would illustrate an 

endorsement made through video game 

play streamed on social media without 

an express product recommendation. 

New Example 9 illustrates disclosures 

that are easily missed and thus are not 

clear and conspicuous. New Examples 

10 and 11 illustrate how a disclosure 

may need to be evaluated from the 

perspective of an advertisement’s target 

audience and that disclosures need to be 

clear and conspicuous on multiple 

common types of platforms or devices. 

New Example 12 derives in part from 

a commenter’s suggestion that the 

Guides address an incentivized endorser 

denigrating a competitor’s product.20

The example would state that a fake 

negative review or another paid or 

incentivized negative statement about a 

competitor’s service does not meet the 

definition of an ‘‘endorsement.’’ It 

would note, however, that engaging in 

such disparagement can be a deceptive 

practice. 

New Example 13 derives from a 

commenter’s suggestion that the Guides 

state, as alleged in FTC v. Devumi, 

LLC,21 that it is illegal to sell, purchase, 

or use bots or other fake social media 

accounts to market goods and 

services.22 Because such indicators do 

not express an advertising message by 

their mere presence, the example would 

acknowledge that an endorser’s use of 

fake indicators of social media influence 

is not itself an endorsement issue. The 

Commission would note in the example 

that it is a deceptive practice for users 

of social media to purchase or create 

indicators of social media influence and 

then use them to misrepresent their 

influence for a commercial purpose and 

that it is a deceptive practice to sell or 

distribute such indicators to such users. 

B. § 255.1—General Considerations 

Section 255.1 sets forth principles 

that apply to endorsements generally 

(e.g., endorsements must reflect the 

honest opinions or experience of the 

endorser, and they may not convey any 

representation that would be deceptive 

if made directly by the advertiser). 

Section 255.1(d) currently recognizes 

that 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. 

The Commission would indicate that an 

advertiser may be liable for an 


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23See, e.g., Boyd at 13; and Dudukovich at 18. 24The Commission would add a cross-reference 

to § 255.3 with respect to the responsibilities of an 

expert endorser. 

25See, e.g., Boyd at 13; and Maastricht at 7–8. 

26See Complaint at 6, 8, 12–12, 20, FTC v. 

Marketing Architects, Inc., No. 2:18–cv–00050 (D. 

Me. Feb. 6, 2018), https://www.ftc.gov/system/files/ 

documents/cases/1623101marketingarchitects

complaint.pdf (defendant advertising agency 

created and disseminated fictitious weight-loss 

testimonials). 

27See Complaint at 2–5, In the Matter of 

Machinima, Inc., No. C–4569 (Sept. 2, 2015), 

https://www.ftc.gov/system/files/documents/cases/ 

160317machinimacmpt.pdf. (respondent recruited, 

hired, and instructed influencers on behalf of an 

advertiser, but did not require the influencers to 

disclose compensation). 

endorser’s deceptive statement even 

when the endorser is not liable. The 

Commission also proposes adding 

guidance to this subsection on what 

actions advertisers should take with 

respect to their endorsers. Such 

guidance previously only appeared in 

an example. 

Current § 255.1(d) also recognizes that 

endorsers themselves may be subject to 

liability for their statements. 

Commenters asked for clarification of 

when endorsers would be liable.23 The 

Commission proposes moving the 

discussion of endorser liability to a new 

§ 255.1(e) and indicating that endorsers 

may be liable for their statements such 

as when they make representations that 

they know or should know to be 

deceptive. The level of due diligence 

required by the endorsers will depend 

on their level of expertise and 

knowledge, among other factors. Current 

Examples 3 and 4 involve endorsers 

who knew or should have known that 

their statements were deceptive. Section 

255.1(e) would also say that a nonexpert endorser may also be liable when 

the endorser makes misleading or 

unsubstantiated representations about 

performance or efficacy that are 

inconsistent with the endorser’s 

personal experience or that were not 

made or approved by the advertiser and 

that go beyond the scope of the 

endorser’s personal experience.24

Current Example 5 involves such an 

endorser and the Commission proposes 

updating it to better illustrate this 

principle. Finally, § 255.1(e) would also 

note that endorsers may also be liable 

for failing to disclose unexpected 

material connections between 

themselves and an advertiser, such as 

when they create and disseminate 

endorsements without such disclosures. 

A few commenters suggested that the 

Guides deal with the disclosure 

responsibility of intermediaries such as 

marketing and public relations firms.25

The Commission proposes adding a new 

§ 255.1(f) explaining the potential 

liability of intermediaries. 

Intermediaries, such as advertising 

agencies and public relations firms, may 

be liable for their roles in disseminating 

what they knew or should have known 

were deceptive endorsements.26 For 

example, advertising agencies that 

intentionally engage in deception or that 

ignore obvious shortcomings of claims 

they disseminate may be liable. They 

may also be liable for their roles with 

respect to endorsements that fail to 

disclose unexpected material 

connections, whether by disseminating 

advertisements without necessary 

disclosures of material connection or by 

hiring and directing the endorsers who 

fail to make necessary disclosures.27

The Commission proposes adding a 

new § 255.1(g) stating a general 

principle that the use of an endorsement 

with the image or likeness of a person 

other than the actual endorser is 

deceptive if it misrepresents a material 

attribute of the endorser. 

The Commission proposes modifying 

current Example 1 to § 255.1 to note that 

an endorser does not need to go back 

and modify or delete past social media 

posts as long as the posts were not 

misleading when they were made and 

the dates of the posts are clear and 

conspicuous to viewers. However, the 

example would state that if the post was 

later reposted by the endorser or shared 

by the publisher, it would suggest to 

reasonable consumers that the endorser 

continued to hold the views expressed 

in the prior post. 

The Commission proposes deleting 

current Example 2 to § 255.1 because it 

is patently obvious that a person asked 

to try unmarked products and pick the 

best one is not communicating that she 

or he is a regular user of the selected 

product. The Commission proposes to 

replace that example with one that 

illustrates when an endorsement would 

likely communicate regular use and 

ownership. 

The Commission proposes editing 

current Example 3 to § 255.1 to indicate 

that a paid endorser and the company 

paying the endorser are both potentially 

liable for the endorser’s social media 

post that fails to disclose the endorser’s 

relationship to the company. The 

Commission proposes altering the 

example and adding a new crossreference in this example to the Guides’ 

material connection provisions (§ 255.5) 

to make clear that those provisions 

apply to paid consultants and not just 

employees or those hired to be 

endorsers. The Commission also 

proposes adding alternative language to 

the example illustrating how the 

advertiser could be liable when the 

endorser is not liable. 

The Commission proposes adding 

new Examples 6 and 7 to illustrate the 

principle in new § 255.1(g) involving 

the use of an image or likeness of a 

person other than the actual endorser to 

misrepresent a material attribute of the 

endorser. These examples involve 

endorsements for an acne product using 

an image of a person with much better 

skin than the actual endorser, a weightloss product with an image of a person 

weighing much less than the actual 

endorser, and a learn-to-read program 

with a picture of a significantly younger 

child than the child of the endorser. 

C. § 255.2—Consumer Endorsements 

Section 255.2 of the Guides provides 

guidance specific to the use of consumer 

endorsements, commonly referred to as 

testimonials. 

Current § 255.2(a) addresses the need 

for adequate substantiation for claims 

made through endorsements. The 

Commission proposes clarifying that 

this need for substantiation applies to 

both express and implied claims. 

Current § 255.2(b) states that when the 

advertiser does not have substantiation 

that an endorser’s experience is 

representative of what consumers will 

generally achieve, an ad should clearly 

and conspicuously disclose the 

generally expected performance in the 

depicted circumstances. The 

Commission proposes adding a 

clarifying statement that the disclosure 

of the generally expected performance 

should be presented in a manner that 

does not itself misrepresent what 

consumers can expect. 

The Commission proposes adding a 

new § 255.2(d) that addresses consumer 

reviews and articulates a fundamental 

principle not expressly set forth in the 

existing Guides. It would state that in 

procuring, suppressing, boosting, 

organizing, or editing consumer reviews 

of their products, advertisers should not 

take actions that have the effect of 

distorting or otherwise misrepresenting 

what consumers think of their products. 

It would also note that this is true 

regardless of whether the reviews are 

considered ‘‘endorsements’’ under the 

Guides. 

The Commission proposes to expand 

current Example 2 of § 255.2 so as to 

illustrate how a disclosure of expected 

results can be misleading when those 

results are only true under limited 

circumstances not clearly stated in the 

ad. 

Because current Example 3 of § 255.2 

involves serum cholesterol lowering 

claims, the Commission proposes 

replacing ‘‘adequate substantiation’’ 


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28Example 4 provides an example of a 

performance claim requiring substantiation—a 

claim that WeightAway is an effective weight loss 

product. The Commission proposes revising that 

exemplar to include the claim that the endorser’s 

weight loss was not just due to her dietary 

restrictions and exercise regimen. 

29See Complaint at 5–9, FTC v. Cure 

Encapsulations, Inc., No. 1:19–cv–00982 (E.D.N.Y. 

Feb. 26, 2019), https://www.ftc.gov/system/files/ 

documents/cases/quality_encapsulations_

complaint_2-26-19.pdf. 

30See Complaint at 1–2, In the Matter of Fashion 

Nova, LLC, No. C–4759 (Mar. 18, 2022), http://

www.ftc.gov/system/files/ftc_gov/pdf/ 

1923138C4759FashionNovaComplaint.pdf. 

31See Complaint at 8, In the Matter of UrthBox, 

Inc., No. C–4676 (April 3, 2019), https://

www.ftc.gov/system/files/documents/cases/172_

3028_urthbox_complaint_4-3-19_0.pdf. 

32See FTC v. Roca Labs, Inc., 345 F. Supp. 3d 

1375, 1394–95 (M.D. Fla. 2018). 

33See, e.g., BBB at 5; Boyd at 23; Dudukovich at 

13; and TINA at 22; but see ANA at 14. 

34The Commission proposes making a similar 

change to § 255.2(c). 

with ‘‘competent and reliable scientific 

evidence,’’ the type of substantiation 

that would be required for such claims. 

Current Example 4 of § 255.2 provides 

two examples of acceptable weight-loss 

disclosures of generally expected results 

under different circumstances, one 

where a testimonialist reports her 

weight loss over a certain period and 

one where the testimonialist reports her 

weight loss without specifying a time 

period. The Commission proposes 

editing those disclosures to make them 

more informative for consumers.28 The 

Commission would also add examples 

of two alternative disclosures that 

would be inadequate, one involving a 

disclosure of weight loss per week and 

the other involving a broad range of 

possible weight loss. 

Another proposed addition to 

Example 4 discusses and illustrates how 

outliers can substantially affect the 

average results such that a disclosure of 

generally expected results based upon a 

mean computation would be misleading 

and how, when such is the case, the 

disclosure could instead be based upon 

median results. 

The Commission would also add 

language to Example 4 illustrating a 

marketer’s liability for procuring fake 

reviews that appear for its product on a 

third-party review website. The 

marketer is not only liable for procuring 

reviews that are not from bona fide 

users, but is also liable for any 

unsubstantiated claims made in those 

fake reviews.29

Finally, the Commission proposes 

adding an alternative scenario to 

Example 4 involving an advertisement 

for a weight-loss program. The addition 

would explain that a disclosure of 

typical weight loss limited to only 

successful participants in the program 

(e.g., only those who stuck with it for 

six months), ignoring participants who 

quit, would be inadequate. 

The Commission proposes four new 

examples to illustrate the proposed new 

§ 255.2(d). 

New Example 8 addresses an online 

seller suppressing or not publishing 

product reviews based upon their star 

ratings or their negative sentiments.30

The review portions of the seller’s 

product pages are misleading as to 

purchasers’ actual opinions of the 

products. The example would also 

provide examples of reviews that need 

not be published. The Commission 

would note that sellers are not required 

to display customer reviews that contain 

unlawful, harassing, abusive, obscene, 

vulgar, or sexually explicit content, or 

content that is inappropriate with 

respect to race, gender, sexuality, or 

ethnicity, or reviews that the seller 

reasonably believes are fake, so long as 

the criteria for withholding reviews are 

applied uniformly to all reviews 

submitted. The footnote would also note 

that sellers are not required to display 

reviews that are unrelated to their 

products or services and that ‘‘services’’ 

include customer service, delivery, 

returns, and exchanges. The 

Commission is particularly interested in 

consumer expectations regarding 

product reviews that are solely about 

related services. Do consumers expect 

that sellers publish such reviews that 

are just about a product’s shipping or 

refund practices or the associated 

customer service together with other 

product reviews? Finally, the example 

illustrates that it would be deceptive for 

a seller to highlight glowing reviews and 

label them as ‘‘most helpful’’ if 

consumers had not actually voted them 

most helpful. 

New Example 9 addresses paying 

purchasers to write positive product 

reviews.31 Such reviews are deceptive 

regardless of any disclosure of the 

payment, because the manufacturer has 

required that the reviews be positive. 

The proposed example has a crossreference for when there is no 

requirement that the reviews be positive 

and the reviewers understand that they 

are free to write negative reviews 

without suffering any consequences. 

New Example 10 addresses the unfair 

practice of threatening consumers who 

post negative reviews to third-party 

websites in order to coerce the 

consumers to delete their reviews. Such 

threats can take the form of legal,32

physical, or other threats. As noted in a 

new proposed footnote to the Guides, 

when the threats are incorporated into 

a form contract, they violate the 

Consumer Review Fairness Act. 15 

U.S.C. 45b(b)(1). 

Several commenters suggested 

addressing review gating, i.e., practices 

that involve obtaining customer 

feedback and then sending satisfied and 

dissatisfied customers down different 

paths in order to encourage positive 

reviews and avoid negative reviews.33

New Example 11 discusses a marketer 

soliciting feedback from all customers 

and only inviting those who give 

positive feedback to write online 

reviews. It says that such disparate 

treatment may be an unfair or deceptive 

practice if it results in the posted 

reviews being substantially more 

positive than if the marketer had not 

engaged in the practice. 

D. § 255.3—Expert Endorsements 

Section 255.3 provides guidance with 

respect to expert endorsements. 

Current § 255.3(a) addresses 

advertisements that represent ‘‘directly 

or by implication’’ that an endorser is an 

expert with respect to the endorsement 

message. The Commission proposes 

clarifying that this section applies to 

representations made ‘‘expressly or by 

implication.’’ 34 The Commission 

proposes modifying current Example 2 

to clarify that the non-medical ‘‘doctor’’ 

expert endorser should have relevant 

expertise and that the non-medical and 

non-specialized doctors referenced in 

the example do not necessarily have 

enough expertise to endorse the product 

even with a clear and conspicuous 

disclosure. The Commission also 

proposes amending current Example 6— 

adding a sentence about the potential 

liability of the expert endorser and the 

advertiser, including a cross-reference to 

§ 255.1. The Commission would clarify 

that what matters is the expert’s 

‘‘purported’’ degree of expertise, not the 

expert’s actual degree of expertise. 

Finally, the Commission would also 

indicate in Example 6 that scientific 

evidence is expected to support a serum 

cholesterol lowering claim. 

E. § 255.4—Endorsements by 

Organizations 

Section 255.4 provides guidance 

specific to the use of endorsements by 

organizations. 

The Commission proposes to 

renumber the current example in § 255.4 

as Example 1 and to add two additional 

examples. 

New Example 2 would say that if a 

manufacturer sets up an apparently 

independent review website that 

reviews the manufacturer’s own 


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35See Complaint at 8–9, In the Matter of Son Le, 

No. C–4619 (May 31, 2020), https://www.ftc.gov/ 

system/files/documents/cases/162_3178_c4619_

trampolinesafetyofamerica_complaint_0.pdf. 

36See Complaint at 15, In the Matter of Shop 

Tutors, Inc., No. C–4719 (Feb. 3, 2020), https://

www.ftc.gov/system/files/documents/cases/182_

3180_lendedu_complaint.pdf. 

37See AFSA at 2. 

38See Boyd at 9. 

39See, e.g., ANA at 10–12; CMA at 2; and NCTA 

at 10. 

40See NRF at 4. 

41 Id. at 10. 

42See Hoofnagle at 3. 

43See CCFC at 3, 25; CSM at 1, 10; and TINA at 

10–11. 

44See SuperAwesome at 2; see also NetChoice at 

11. 

45See ANA at 9–10; DCN at 2; IAB at 5; and 

NCTA at 2–3. 

46See CCFC at 23. 

47See, e.g., CCFC at 16–17, 21–23; CSM at 3–4, 

6, 9; SuperAwesome at 3–5; and TINA at 10–11. 

48See, e.g., BBB at 4; and CSM at 10. 

products and competing products, that 

website is deceptive because it is not in 

fact independent.35

New Example 3 addresses a thirdparty review site that provides rankings 

of various manufacturers’ products and 

accepts payments in exchange for higher 

rankings. This practice was challenged 

in the Commission’s case against 

LendEDU.36 One commenter asked 

whether, based on that case, a 

disclosure is only required on such 

websites when they make claims that 

they are ‘‘objective,’’ ‘‘accurate,’’ and 

‘‘unbiased.’’ 37 The revised example 

would say that a paid ranking boost is 

deceptive regardless of whether the 

website makes an express claim of 

independence or objectivity. It also 

would note the potential lability of a 

manufacturer that pays for a higher 

ranking. Finally, it would say that if a 

manufacturer makes payments to the 

review site but not for higher rankings, 

there should be a clear and conspicuous 

disclosure regarding the payments, with 

a cross-reference to an example 

involving payments for affiliate links. 

F. § 255.5—Disclosure of Material 

Connections 

Section 255.5 of the current Guides 

states that advertisers must disclose 

connections between themselves and 

their endorsers that might materially 

affect the weight or credibility of the 

endorsement (i.e., the connection is not 

reasonably expected by the audience). 

The text of this section also includes the 

example of a television ad featuring an 

endorser who is neither represented in 

the advertisement as an expert nor is 

known to a significant portion of the 

viewing public. 

The Commission believes the 

requirement that material connections 

between advertisers and endorsers be 

disclosed is appropriate and should be 

retained. The Commission proposes 

specifying that such disclosures must be 

‘‘clear and conspicuous,’’ adding a 

definition of that phrase (as discussed 

above), and deleting the more 

ambiguous statement that such 

disclosures must be ‘‘fully’’ disclosed. It 

also proposes to delete the existing 

example from the text of the section and 

to replace it with more general 

guidance. A commenter asked for 

further guidance about what types of 

relationships could constitute material 

connections.38 The proposed revised 

text of § 255.5 would explain that 

material connections can include a 

business, family, or personal 

relationship; monetary payment; the 

provision of free or discounted products 

or services to the endorser, including 

products or services unrelated to the 

endorsed product; early access to a 

product; or the possibility of winning a 

prize, of being paid, or of appearing on 

television or in other media promotions. 

The new guidance would state that a 

material connection can exist regardless 

of whether the advertiser requires an 

endorsement for the payment or free or 

discounted products. 

Several commenters asked that the 

Commission provide examples of 

immaterial connections that need no 

disclosure.39 The Commission proposes 

instead to recognize in the text of 

§ 255.5 that some connections may be 

immaterial because they are too 

insignificant to affect the weight or 

credibility given to endorsements. 

One commenter suggested that the 

Guides recognize that, for influencers 

primarily famous because of their social 

media presence, their sponsorships are 

often expected.40 Without accepting or 

rejecting that proposition, the 

Commission proposes stating that an 

endorser’s material connection need not 

to be disclosed when it is understood or 

expected by all but an insignificant 

portion of the audience. 

One commenter requested that the 

Guides state that the exact nature or 

amount of an endorser’s compensation 

need not be disclosed,41 while another 

commenter asked that the Guides 

require influencers to state the amount 

of their compensation because it will 

help star-struck consumers appreciate 

the lack of honesty in celebrity posts.42

The Commission proposes clarifying 

that the disclosure of a material 

connection does not require the 

complete details of the connection, but 

it must clearly communicate the nature 

of the connection sufficiently for 

consumers to evaluate its significance. 

Commenters also expressed widely 

diverging opinions on the extent to 

which the Guides should address 

disclosures of material connections to 

children. Most of these commenters 

agreed that, as children grow, they are 

better able to understand what 

advertisements are and to distinguish 

them from other content. They also 

agreed that it is easier for children to 

recognize traditional television 

advertising than influencer marketing, 

with its blurring of organic content and 

marketing. Commenters diverged as to 

the ages at which and the extent to 

which disclosures can be effective. 

Some variously argued that disclosures 

of material connections are never 

effective for children, are ineffective at 

certain young ages, or should be more 

robust for children at certain ages.43 At 

least one commenter argued that 

disclosures can work for younger kids.44

Several commenters urged the 

Commission not to address this issue in 

the Guides at all and rely instead on 

self-regulatory organizations.45 One 

commenter also noted that improving 

disclosures can help parents identify 

advertising to children.46 Some 

commenters discussed or cited research 

studies in this area to support their 

views 47 or referred to the value of 

additional research.48

The Commission recognizes that it is 

difficult for children—especially 

younger children—to discern ads from 

entertainment or other content in the 

digital environment, where the lines are 

blurred much more than in traditional 

‘‘linear’’ media, like television. For 

example, it may not be apparent to them 

when influencers are being paid to 

promote a product featured in their 

video and social media posts. Although 

not addressed in the comments, parents 

may play a role in promoting children’s 

understanding of advertising and 

lessening the effects of potentially 

deceptive practices. The Commission 

would benefit from more evidence than 

provided in the comments to develop 

specific guidance or best practices in 

this area. FTC staff thus plans to hold 

a public event to gather research and 

expert opinion on: (a) children’s 

capacities at different ages and 

developmental stages to recognize and 

understand advertising content and 

distinguish it from other content; (b) the 

need for and efficacy of disclosures as 

a solution to the problem facing 

children of different ages; and, (c) if 

disclosures can be efficacious, the most 

effective format, placement, and 

wording for disclosures. As discussed 

below, the Commission also proposes 


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49See CW at 2–5. 

50See Dudukovich at 30, 62. 

51See IZEA at 1. 

52See Dudukovich at 24–25. 53See, e.g., AFSA at 3–4; BBB at 4–5; Boyd at 21– 

22; Dudukovich at 12–13; NAIMA at 4–5; and TINA 

at 21; but see CRN at 4–5. 54See, e.g., AFSA at 4; BBB at 5; NAIMA at 5; 

and TINA at 21–22. 

55See CRN at 4; and KK&B at 1–2; see also 

NAIMA at 4. 

56See Guides for the Use of Environmental 

Marketing Claims, 16 CFR 290.6, Example 8. 

57See, e.g., AFSA at 4; BBB at 5, 11–12; Boyd at 

24–25; CRN at 3, Consumer Reports at 10; 

Dudukovich at 14, 52; Maastricht at 7; and NMA at 

3. 

58See NRF at 10. 

adding a new § 255.6 addressing 

endorsements directed to children. 

The current Example 3 to § 255.5 

makes clear that consumers would not 

expect that a celebrity was paid for 

endorsing a medical procedure during a 

routine interview on a television talk 

show, that knowledge of such a 

financial interest would likely affect the 

weight or credibility consumers give to 

that endorsement, and that the 

celebrity’s financial connection to the 

advertiser should be disclosed. One 

commenter said that the Guides should 

indicate that disclosures at the end of a 

talk show are not clear and 

conspicuous.49 The Commission 

proposes edits to Example 3 noting that 

the disclosure should be during the 

interview and that a disclosure during 

the show’s closing credits is not clear 

and conspicuous. A different 

commenter suggested that the Guides 

say that disclosure obligations exist 

even if an endorser is not paid for a 

particular post.50 Revised Example 3 

would say that, if the celebrity makes 

the endorsement in one of her social 

media posts, her connection to the 

advertiser should be disclosed 

regardless of whether she was paid for 

the particular post. The revised example 

would also illustrate that receipt of free 

or discounted services can constitute a 

material connection. 

One comment suggested that the 

Guides address the reuse of an 

influencer’s social media 

endorsement.51 Revised Example 3 

would also state that, when reusing a 

celebrity’s social media posts in its own 

social media, an advertiser should 

clearly and conspicuously disclose its 

relationship to the celebrity (assuming 

the initial post necessitated a 

disclosure). 

The current Example 4 to § 255.5 

addresses the consumer expectation that 

an expert endorser would be reasonably 

compensated for appearing in an ad. 

The Commission proposes clarifying 

that the existing guidance applies to 

traditional ads, such as television ads, 

and adding an alternative scenario 

involving a post on the expert’s own 

social media account, a context in 

which consumers would be less likely 

to expect that the expert was 

compensated and more likely to expect 

that the expert is expressing an 

independent opinion. 

The current Example 5 to § 255.5 

addresses a scenario in which restaurant 

patrons are informed before they enter 

that they will be interviewed by an 

advertiser as part of its TV promotion of 

its new food product. A commenter 

suggested that we clarify why this 

information is material.52 The 

Commission proposes explaining that a 

patron might want to give the product 

a good review in the hope of appearing 

on television. 

Several commenters said that 

incentivized reviews need disclosures 

even if the incentives are not 

conditioned on the reviews being 

positive.53 Current Example 6 to § 255.5 

addresses the situation where ‘‘extras’’ 

who want to work in commercials are 

recruited to use a product and endorse 

it in an infomercial in exchange for 

compensation and exposure. The 

Commission proposes expanding the 

example to address ordinary consumers 

recruited to try a product for free and 

write online reviews of it in exchange 

for payment; the example would state 

the need to disclose this connection in 

the resulting reviews. The example has 

a cross-reference to § 255.2(d) and 

Example 9 of § 255.2 for situations in 

which an incentive is conditioned on a 

review being positive or recruited 

consumers have reason to believe there 

are or may be negative consequences 

from posting reviews which are not 

positive. Multiple comments also raised 

concerns regarding incentivized reviews 

being included in an average star 

rating.54 The proposed example states 

that, even if adequate disclosures appear 

in each incentivized review, the practice 

could still be deceptive if those solicited 

reviews’ star ratings are included in an 

average star rating for the product, and 

their inclusion materially increases that 

average star rating. 

The Commission proposes to modify 

Example 7 to § 255.5 to say that if a 

significant proportion of viewers are 

likely unaware that a woodworking 

influencer received a valuable piece of 

equipment for free from its 

manufacturer, he should clearly and 

conspicuously disclose that he got it for 

free. The Commission would make this 

example conditional in recognition of 

the possibility that the followers of 

some influencers or types of influencers 

may expect that they receive free 

products from advertisers. The 

Commission would also add a crossreference to § 255.1(d) about the liability 

and responsibilities of advertisers. 

The current Example 8 to § 255.5 

addresses an employee’s endorsement of 

an employer’s product in an online 

community and the resulting need for a 

disclosure. A comment asked that the 

Commission add a statement about the 

employer educating its employees about 

disclosure requirements. The 

Commission proposes adding an 

explanation of an employer’s obligations 

and noting that this guidance also 

applies to online consumer reviews. 

The Commission is also proposing the 

addition of three new examples to 

§ 255.5. 

The first one arises from the request 

of commenters that the Commission 

include an example illustrating 

conditions under which third-party 

certifications and seals of approval, 

which typically require payment to the 

certifying organization to fund the 

evaluation, do not require a 

disclosure.55 New Example 10, which is 

a slightly edited version of an example 

in the Green Guides,56 recognizes that 

consumers would reasonably expect 

that marketers have to pay non-profit, 

third-party organizations reasonable fees 

for some certifications and seals. 

Second, multiple commenters asked 

that the Guides address the need to 

disclose affiliate relationships and the 

adequacy of affiliate links 57 while one 

commenter asserted that consumers 

understand such links and that no 

disclosure is necessary.58 New Example 

11 addresses the disclosure of affiliate 

links. It says that a blogger who writes 

independent content reviewing 

products and who monetizes that 

content with affiliate links should 

clearly and conspicuously disclose the 

compensation. 

Third, new Example 12 recognizes 

that, just as with television 

commercials, consumers can reasonably 

expect that people appearing in certain 

newer-form advertisements are 

compensated for their statements. 

G. New § 255.6—Endorsements Directed 

to Children 

As discussed above, endorsements 

directed to children may be of special 

concern. The Commission proposes 

adding a section simply acknowledging 

that fact, as to which we are aware of 

no disagreement. It would state, 

‘‘Endorsements in advertisements 

addressed to children may be of special 

concern because of the character of the 

audience. Practices which would not 


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59See 37 FR 25,548 (Dec. 1, 1972). 

60See 40 FR 22,127 (May 1, 1975). 

1Staff business guidance applying section 5 of the 

FTC Act to endorsements and testimonials in 

advertising is available on the FTC website. Such 

staff guidance addresses details not covered in these 

Guides and is updated periodically but is not 

approved by or binding upon the Commission. 

ordinarily be questioned in 

advertisements addressed to adults 

might be questioned in such cases.’’ The 

Commission proposed a very similar 

section in 1972 as § 255.6,59 but 

withdrew it in 1975, stating that it had 

‘‘determined that the area of children’s 

advertising could not be completely 

covered in these Guides.’’ 60 The 

Commission now believes that even as 

more evidence is gathered about the 

effects of children’s advertising, there is 

ample basis to recognize that children 

may react differently than adults to 

endorsements in advertising or to 

related disclosures. 

Request for Comment 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before September 26, 2022. Write 

‘‘Endorsement Guides; P204500’’ on 

your comment. Your comment— 

including your name and your state— 

will be placed on the public record of 

this proceeding, including, to the extent 

practicable, on the https://

www.regulations.gov website. 

Because of the agency’s heightened 

security screening, postal mail 

addressed to the Commission will be 

subject to delay. We strongly encourage 

you to submit your comments online 

through the https://www.regulations.gov 

website. To ensure the Commission 

considers your online comment, please 

follow the instructions on the webbased form. 

If you file your comment on paper, 

write ‘‘Endorsement Guides; P204500’’ 

on your comment and on the envelope, 

and mail your comment to the following 

address: Federal Trade Commission, 

Office of the Secretary, 600 

Pennsylvania Avenue NW, Suite CC– 

5610 (Annex B), Washington, DC 20580. 

Because your comment will be placed 

on the public record, you are solely 

responsible for making sure that your 

comment does not include any sensitive 

or confidential information. In 

particular, your comment should not 

contain sensitive personal information, 

such as your or anyone else’s Social 

Security number; date of birth; driver’s 

license number or other state 

identification number or foreign country 

equivalent; passport number; financial 

account number; or credit or debit card 

number. You are also solely responsible 

for making sure your comment does not 

include any sensitive health 

information, such as medical records or 

other individually identifiable health 

information. In addition, your comment 

should not include any ‘‘[t]rade secret or 

any commercial or financial information 

which . . . is privileged or 

confidential’’—as provided in Section 

6(f) of the FTC Act, 15 U.S.C. 46(f), and 

FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— 

including competitively sensitive 

information such as costs, sales 

statistics, inventories, formulas, 

patterns, devices, manufacturing 

processes, or customer names. 

Comments containing material for 

which confidential treatment is 

requested must be filed in paper form, 

must be clearly labeled ‘‘Confidential,’’ 

and must comply with FTC Rule 4.9(c). 

In particular, the written request for 

confidential treatment that accompanies 

the comment must include the factual 

and legal basis for the request and must 

identify the specific portions of the 

comment to be withheld from the public 

record. See FTC Rule 4.9(c). Your 

comment will be kept confidential only 

if the General Counsel grants your 

request in accordance with the law and 

the public interest. Once your comment 

has been posted publicly at 

www.regulations.gov—as legally 

required by FTC Rule 4.9(b)—we cannot 

redact or remove your comment, unless 

you submit a confidentiality request that 

meets the requirements for such 

treatment under FTC Rule 4.9(c), and 

the General Counsel grants that request. 

Visit the FTC website to read this 

document and the news release 

describing it. The FTC Act and other 

laws that the Commission administers 

permit the collection of public 

comments to consider and use in this 

proceeding as appropriate. The 

Commission will consider all timely 

and responsive public comments it 

receives on or before September 26, 

2022. For information on the 

Commission’s privacy policy, including 

routine uses permitted by the Privacy 

Act, see https://www.ftc.gov/siteinformation/privacy-policy. 

List of Subjects in 16 CFR Part 255 

Advertising, Trade practices. 

■ Accordingly, the Federal Trade 

Commission proposes to revise 16 CFR 

part 255 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. 

255.6 Endorsements directed to children. 

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.1 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, 

marketing, or promotional message 

(including verbal statements, tags in 

social media posts, 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 

could be or appear to 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 


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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, brand, 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. 

(f) For purposes of this part, ‘‘clear 

and conspicuous’’ means that a 

disclosure is difficult to miss (i.e., easily 

noticeable) and easily understandable 

by ordinary consumers. If a 

communication’s representation 

necessitating a disclosure is made 

through visual means, the disclosure 

should be made in at least the 

communication’s visual portion; if the 

representation is made through audible 

means, the disclosure should be made 

in at least the communication’s audible 

portion; and if the representation is 

made through both visual and audible 

means, the disclosure should be made 

in the communication’s visual and 

audible portions. A disclosure presented 

simultaneously in both the visual and 

audible portions of a communication is 

more likely to be clear and conspicuous. 

A visual disclosure, by its size, contrast, 

location, the length of time it appears, 

and other characteristics, should stand 

out from any accompanying text or 

other visual elements so that it is easily 

noticed, read, and understood. An 

audible disclosure should be delivered 

in a volume, speed, and cadence 

sufficient for ordinary consumers to 

easily hear and understand it. In any 

communication using an interactive 

electronic medium, such as social media 

or the internet, the disclosure should be 

unavoidable. The disclosure should not 

be contradicted or mitigated by, or 

inconsistent with, anything else in the 

communication. When an endorsement 

targets a specific audience, such as older 

adults, ‘‘ordinary consumers’’ includes 

members of that group. 

(g) Examples: 

(1) Example 1. A film critic’s review 

of a movie is excerpted in an 

advertisement placed by the film’s 

producer. When so used, the excerpt is 

an endorsement because readers would 

view it as a statement of the critic’s own 

opinions and not those of the producer. 

If the excerpt alters or quotes from the 

text of the review in a way that does not 

fairly reflect its substance, the 

advertisement would be deceptive 

because it distorts the endorser’s 

opinion. (See § 255.1(b)) 

(2) Example 2. A television 

commercial depicts two unidentified 

shoppers in a supermarket buying a 

laundry detergent. One comments to the 

other how clean the advertised brand 

makes the shopper’s clothes. The other 

shopper then replies, ‘‘I will try it 

because I have not been fully satisfied 

with my own brand.’’ This obviously 

fictional dramatization would not be an 

endorsement. 

(3) Example 3. In an advertisement for 

a pain remedy, an announcer unfamiliar 

to consumers except as a spokesperson 

for the advertising drug company 

praises the drug’s ability to deliver fast 

and lasting pain relief. The 

spokesperson purports to speak, not on 

the basis of their 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. 

(4) 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. Many consumers are likely to 

believe this message reflects the driver’s 

personal views, even if the driver does 

not say so, because consumers recognize 

the speaker as primarily a racing driver 

and not merely as a spokesman. 

Accordingly, consumers may well 

believe the driver would not speak for 

an automotive product without actually 

believing in their statements and having 

personal knowledge sufficient to form 

the beliefs expressed. The attribution of 

these beliefs to the driver makes this 

message an endorsement under the 

Guides. 

(5) Example 5. (i) A television 

advertisement for a brand of golf balls 

includes a video of a prominent and 

well-recognized professional golfer 

practicing numerous drives off the tee. 

The video would be an endorsement 

even though the golfer makes no verbal 

statement in the advertisement. 

(ii) The golfer is also hired to post the 

video to their social media account. The 

post is an endorsement if viewers can 

readily identify the golf ball brand, 

either because it is apparent from the 

video or because it is tagged or 

otherwise mentioned in the post. 

(6) Example 6. (i) An infomercial for 

a home fitness system is hosted by a 

well-known actor. During the 

infomercial, the actor demonstrates the 

machine and states, ‘‘This is the most 

effective and easy-to-use home exercise 

machine that I have ever tried. Even if 

the actor is reading from a script, the 

statement would be an endorsement, 

because consumers are likely to believe 

it reflects the actor’s personal views. 

(ii) Assume that, rather than speaking 

about their experience with or opinion 

of the machine, the actor says that the 

machine was designed by exercise 

physiologists at a leading university, 

that it isolates each of five major muscle 

groups, and that it is meant to be used 

for fifteen minutes a day. After 

demonstrating various exercises using 

the machine, the actor finally says how 

much the machine costs and how to 

order it. As the actor does not say or do 

anything during the infomercial that 

would lead viewers to believe that the 

actor is expressing their own views 

about the machine, there is no 

endorsement. 

(7) Example 7. (i) 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. The purchaser posts 

to their social media account that the 

change in diet has made their dog’s fur 

noticeably softer and shinier, and that in 

her opinion, the new dog food definitely 

is worth the extra money. Because the 

consumer has no connection to the 

manufacturer beyond being an ordinary 

purchaser, their message cannot be 

attributed to the manufacturer and the 

post would not be deemed an 

endorsement under the Guides. The 

same would be true if the purchaser 

writes a consumer product review on 

the manufacturer’s website, a retailer’s 

website, or an independent review 

website. 

(ii) Assume that rather than purchase 

the dog food with their own money, the 

consumer receives it for free because the 

store routinely tracks purchases and the 

dog food manufacturer arranged for the 

store to provide a coupon for a free trial 

bag of its new brand to all purchasers 

of its existing brand. The manufacturer 

does not ask coupon recipients for 

product reviews and recipients likely 

would not assume that the manufacturer 

expects them to post reviews. The 

consumer’s post would not be deemed 

an endorsement under the Guides 

because this unsolicited review cannot 

be attributed to the manufacturer. 

(iii) Assume now that the consumer 

joins a marketing program under which 

participants periodically receive free 

products from various manufacturers 

and can write reviews if they want to do 

so. If the consumer receives a free bag 

of the new dog food through this 

program, their positive review would be 

considered an endorsement under the 

Guides because of their connection to 

the manufacturer through the marketing 

program. 


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(8) Example 8. A college student, who 

has earned a reputation as an excellent 

video game player, live streams their 

game play. The developer of a new 

video game pays the student to play and 

live stream its new game. The student 

plays the game and appears to enjoy it. 

Even though the college student does 

not expressly recommend the game, the 

game play is considered an 

endorsement. 

(9) Example 9. (i) An influencer who 

is paid to endorse a vitamin product in 

their social media posts discloses their 

connection to the product’s 

manufacturer only on the profile pages 

of their social media accounts. The 

disclosures are not clear and 

conspicuous because people seeing their 

paid posts could easily miss the 

disclosures. 

(ii) Assume now that the influencer 

discloses their connection to the 

manufacturer in the posts themselves, 

but that, in order to see the disclosures, 

consumers have to click on a link 

labeled simply ‘‘more.’’ Those 

disclosures are not clear and 

conspicuous. 

(iii) Assume now that the influencer 

relies solely upon a social media 

platform’s built-in disclosure tool for 

one of these posts. The disclosure 

appears in small white text, it is set 

against the light background of the 

image that the influencer posted, it 

competes with unrelated text that the 

influencer superimposed on the image, 

and the post appears for only five 

seconds. The disclosure is easy to miss 

and thus not clear and conspicuous. 

(10) Example 10. A television 

advertisement promotes a smartphone 

app that purportedly halts cognitive 

decline. The ad presents multiple 

endorsements by older senior citizens 

who are represented as actual 

consumers who used the app. The 

advertisement discloses via both audio 

and visual means that the persons 

featured are actors. Because the 

advertisement is targeted at older 

consumers, whether the disclosure is 

clear and conspicuous will be evaluated 

from the perspective of older 

consumers, including those with 

diminished auditory, visual, or 

cognitive processing abilities. 

(11) Example 11. (i) A social media 

advertisement promoting a cholesterollowering product features a 

testimonialist who says how says by 

how much they lowered their serum 

cholesterol. The claimed reduction 

greatly exceeds what is typically 

experienced by users of the product and 

a disclosure of typical results is 

required. The marketer has been able to 

identify from online data collection 

Spanish speaking individuals with high 

cholesterol levels who are unable to 

understand English and microtargets a 

Spanish-language version of the ad to 

them, disclosing the typical results in 

English. The adequacy of the disclosure 

will be evaluated from the perspective 

of the targeted individuals. 

(ii) Assume now that the ad has a 

disclosure that is clear and conspicuous 

when viewed on a computer browser 

but that is not clear and conspicuous 

when the ad is rendered on a 

smartphone. Because some consumers 

will view the ad on their smartphones, 

the disclosure is inadequate. 

(12) Example 12. An exterminator 

purchases fake negative reviews of 

competing exterminators. A paid or 

otherwise incentivized negative 

statement about a competitor’s product 

is not an endorsement, as that term is 

used in the Guides. Nevertheless, such 

statements, e.g., a paid negative review 

of a competing product, can be 

deceptive in violation of section 5. 

(13) Example 13. A motivational 

speaker buys fake social media 

followers to impress potential clients. 

The use by endorsers of fake indicators 

of social media influence, such as fake 

social media followers, is not itself an 

endorsement issue. The Commission 

notes, however, that it is a deceptive 

practice for users of social media 

platforms to purchase or create 

indicators of social media influence and 

then use them to misrepresent such 

influence to potential clients, 

purchasers, investors, partners, or 

employees or to anyone else for a 

commercial purpose. It is also a 

deceptive practice to sell or distribute 

such indicators to such users. 

§ 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) An advertisement need not present 

an endorser’s message in the exact 

words of the endorser unless the 

advertisement presents the endorsement 

as a quotation. 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 about 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 misleading or unsubstantiated 

statements made through endorsements 

when there is a connection between the 

advertiser and the endorser, or for 

failing to disclose unexpected material 

connections between themselves and 

their endorsers (see § 255.5). An 

advertiser may be liable for an 

endorser’s deceptive statement even 

when the endorser is not liable. 

Advertisers should: 

(1) Provide guidance to their 

endorsers on the need to ensure that 

their statements are not misleading and 

to disclose unexpected material 

connections; 

(2) Monitor their endorsers’ 

compliance; and 

(3) Take action sufficient to remedy 

non-compliance and prevent future noncompliance. 

(e) Endorsers may be liable for 

statements made in the course of their 

endorsements, such as when an 

endorser makes a representation that the 

endorser knows or should know to be 

deceptive. Also, an endorser who is not 

an expert may be liable for misleading 

or unsubstantiated representations 

regarding a product’s performance or 

effectiveness when the representations 

are inconsistent with the endorser’s 

personal experience, or were not made 

or approved by the advertiser and go 

beyond the scope of the endorser’s 

personal experience (for the 

responsibilities of an endorser who is an 

expert, see § 255.3). Endorsers may also 

be liable for failing to disclose 

unexpected material connections 

between themselves and an advertiser, 

such as when an endorser creates and 

disseminates endorsements without 

such disclosures. 

(f) Intermediaries, such as advertising 

agencies and public relations firms, may 


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be liable for their roles in disseminating 

what they knew or should have known 

were deceptive endorsements. They 

may also be liable for their roles with 

respect to endorsements that fail to 

disclose unexpected material 

connections, whether by disseminating 

advertisements without necessary 

disclosures or by hiring and directing 

endorsers who fail to make necessary 

disclosures. 

(g) The use of an endorsement with 

the image or likeness of a person other 

than the actual endorser is deceptive if 

it misrepresents a material attribute of 

the endorser. 

(h) Examples: 

(1) Example 1. (i) A building 

contractor states in an advertisement 

disseminated by an advertiser, ‘‘I use 

XYZ exterior house paint because of its 

remarkable quick drying properties and 

durability.’’ This endorsement must 

comply with the pertinent requirements 

of § 255.3. 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 use the paint and to 

subscribe to the views presented 

previously. 

(ii) Assume that, before the 

reformulation, the contractor had posted 

an endorsement of the paint to their 

social media account. Even if the 

contractor would not use or recommend 

the reformulated paint, there is no 

obligation to modify or delete their post 

as long as the date of that post is clear 

and conspicuous to viewers. If the 

contractor reposts or the advertiser 

shares the contractor’s original 

endorsement after the reformulation, 

consumers would expect that the 

contractor continued to hold the views 

expressed in the original post. 

(2) Example 2. In a radio 

advertisement, a well-known DJ talks 

about how much they enjoy making 

coffee with a particular coffee maker in 

the morning. The DJ’s comments likely 

communicate that they own and 

regularly use the coffee maker. If they 

do not own it or used it only during a 

demonstration by its manufacturer, the 

ad would be deceptive. 

(3) Example 3. (i) A dermatologist is 

a paid advisor to a pharmaceutical 

company and is asked by the company 

to post about its products on their 

professional social media account. The 

dermatologist posts that the company’s 

newest acne treatment product is 

‘‘clinically proven’’ to work. Before 

giving the endorsement, the 

dermatologist 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. Given 

their medical expertise, the 

dermatologist should have recognized 

the study’s flaws and is subject to 

liability for their false statements made 

in the advertisement. The advertiser is 

also liable for the misrepresentation 

made through the endorsement (see 

§ 255.3 regarding the product evaluation 

that an expert endorser must conduct). 

Even if the study was sufficient to 

establish the product’s proven efficacy, 

the pharmaceutical company and the 

dermatologist are both potentially liable 

if the endorser fails to disclose their 

relationship to the company (see § 255.5 

regarding the disclosure of unexpected 

material connections). 

(ii) Assume that the expert had asked 

the pharmaceutical company for the 

evidence supporting its claims and there 

were no apparent design or execution 

flaws in the study shown to the expert, 

but that the pharmaceutical company 

had withheld a larger and better 

controlled, non-published proprietary 

study of the acne treatment which failed 

to find any statistically significant 

improvement in acne. The expert’s 

‘‘clinically proven’’ to work claim 

would be deceptive and the company 

would be liable for the claim, but 

because the dermatologist did not have 

a reason to know that the claim was 

deceptive, the expert would not be 

liable. 

(4) Example 4. A well-known 

celebrity appears in an infomercial for a 

hot air roaster that purportedly cooks a 

chicken perfectly in twenty minutes. 

During the shooting of the infomercial, 

the celebrity watches five attempts to 

cook chickens using the roaster. In each 

attempt, the chicken is undercooked 

after twenty minutes and requires fortyfive minutes of cooking time. In the 

commercial, the celebrity places an 

uncooked chicken in the roaster. The 

celebrity then takes from a second 

roaster what appears to be a perfectly 

cooked chicken, tastes the chicken, and 

says that if you want perfect chicken 

every time, in just twenty minutes, this 

is the product you need. A significant 

percentage of consumers are likely to 

believe the statement represents the 

celebrity’s own view and experience 

even though the celebrity is reading 

from a script. Because the celebrity 

knows that their statement is untrue, the 

endorser is subject to liability. The 

advertiser is also liable for 

misrepresentations made through the 

endorsement. 

(5) Example 5. (i) A skin care products 

advertiser hires an influencer to 

promote its products on the influencer’s 

social media account. The advertiser 

requests that the influencer try a new 

body lotion and post a video review of 

it. The advertiser does not provide the 

influencer with any materials stating 

that the lotion cures skin conditions and 

the influencer does not ask the 

advertiser if it does. However, believing 

that the lotion cleared up their eczema, 

the influencer says in their review, 

‘‘This lotion cures eczema. All of my 

followers suffering from eczema should 

use it.’’ The advertiser is subject to 

liability for misleading or 

unsubstantiated representations made 

through the influencer’s endorsement. 

Furthermore, the influencer, who did 

not limit their claims to their personal 

experience and did not have a 

reasonable basis for their claim that the 

lotion cures eczema, is subject to 

liability for the misleading or 

unsubstantiated representation in 

endorsement. The influencer and the 

advertiser may also be liable if the 

influencer fails to disclose clearly and 

conspicuously being paid for the 

endorsement (see § 255.5). 

(ii) In order to limit its potential 

liability, the advertiser should provide 

guidance to its influencers concerning 

the need to ensure that statements they 

make are truthful and substantiated and 

the need to disclose unexpected 

material connections and take other 

steps to discourage or prevent noncompliance. The advertiser should also 

monitor its influencers’ compliance and 

take steps necessary to remove and halt 

the continued publication of deceptive 

representations when they are 

discovered and to ensure the disclosure 

of unexpected material connections (see 

§§ 255.1(d) and 255.5). 

(6) Example 6. (i) The website for an 

acne treatment features accurate 

testimonials of users who say that the 

product improved their acne quickly 

and with no side effects. Instead of 

using images of the actual endorsers, the 

website accompanies the testimonials 

with pictures of different individuals 

with near perfect skin. The images 

misrepresent the improvements to the 

endorsers’ complexions. 

(ii) The same website also sells 

WeightAway shakes and features an 

accurate testimonial from an individual 

who says, ‘‘I lost 50 pounds by just 

drinking the shakes.’’ Instead of 

accompanying the testimonial with a 

picture of the actual endorser, who went 

from 300 pounds to 250 pounds, the 

website shows a picture of an individual 

who appears to weigh about 100 

pounds. By suggesting that WeightAway 


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shakes caused the endorser to lose onethird of their original body weight, the 

image misrepresents the product’s 

effectiveness. Even if it is accompanied 

by a picture of the actual endorser, the 

testimonial could still communicate a 

deceptive typicality claim. 

(7) Example 7. A learn-to-read 

program disseminates a sponsored 

social media post by a parent saying that 

the program helped their child learn to 

read. The picture accompanying the 

post is not of the endorser and their 

child. The testimonial is from the parent 

of a 7-year-old, but the post shows an 

image of a child who appears to be only 

4 years old. By suggesting that the 

program taught a 4-year-old to read, the 

image misrepresents the effectiveness of 

the program. 

§ 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 express and implied claims 

made through endorsements in the same 

manner the advertiser would be 

required to do if it 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 

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. 

The disclosure of the generally expected 

performance should be presented in a 

manner that does not itself misrepresent 

what consumers can expect. 

(c) Advertisements presenting 

endorsements by what are represented, 

expressly 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. 

(d) In procuring, suppressing, 

boosting, organizing, or editing 

consumer reviews of their products, 

advertisers should not take actions that 

have the effect of distorting or otherwise 

misrepresenting what consumers think 

of their products, regardless of whether 

the reviews are considered 

endorsements under the Guides. 

(e) Examples: 

(1) Example 1. (i) A web page 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. 

(ii) The web page 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. 

(2) Example 2. (i) 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 heat pump can 

generally expect. The advertiser does 

not have substantiation for that 

representation because, in fact, fewer 

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. 

(A) In another context, the 

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. 

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. 

(B) The advertiser should clearly and 

conspicuously disclose the generally 

expected savings and have 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.’’ 

(ii) Disclosures like those in Example 

2(i)(B) could still be misleading, 

however, if they only apply to limited 

circumstances that are not described in 

the advertisement. For example, if the 

advertisement does not limit its claims 

by geography, it would be misleading if 

the disclosure of expected results in a 

nationally disseminated advertisement 

was based on the experiences of 

customers in a southern climate and the 

experiences of those customers was 

much better than could be expected by 

heat pump users in a northern climate. 

(3) Example 3. An advertisement for 

a cholesterol-lowering product features 

individuals who claim that their serum 

cholesterol went down by 120 points 

and 130 points, respectively; the ad 

does not mention the endorsers having 

made any lifestyle changes. A wellconducted 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 


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the advertiser does not have competent 

and reliable scientific evidence that the 

product can produce the specific results 

claimed by the endorsers (i.e., a 130- 

point drop in serum cholesterol without 

any lifestyle changes). 

(4) Example 4. (i) An advertisement 

for a weight-loss product features a 

formerly obese person. The endorser 

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 endorser’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 they 

achieved the claimed 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 the 

endorser’s 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 and 

that the endorser’s weight loss was not 

caused solely by their dietary 

restrictions and exercise regimen). 

(ii) 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 the endorser’s experience is 

representative of what consumers will 

generally achieve. Therefore, if 

consumers cannot generally expect to 

achieve such results, the ad would be 

deceptive. Instead, the ad should clearly 

and conspicuously disclose what they 

can expect to lose in the depicted 

circumstances (e.g., ‘‘women who use 

WeightAway for six months typically 

lose 15 pounds’’). A disclosure such as 

‘‘Average weight loss is 1–2 pounds per 

week’’ is inadequate and likely 

deceptive. It does not communicate the 

period over which such weight loss can 

be expected and likely implies that such 

weight loss continues at that rate 

indefinitely. 

(iii) 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., ‘‘women who 

use WeightAway lose 15 pounds on 

average’’). A disclosure such as ‘‘most 

women who use WeightAway lose 

between 10 and 50 pounds’’ is 

inadequate because the range specified 

is so broad that it does not sufficiently 

communicate what users can generally 

expect. 

(iv) Assume that a WeightAway 

advertisement contains a disclosure of 

generally expected results that is based 

upon the mean weight loss of users. If 

the mean is substantially affected by 

outliers, then the disclosure would be 

misleading. For example, if the mean 

weight loss is 15 pounds, but the 

median weight loss is 8 pounds, it 

would be misleading to say that the 

average weight loss was 15 pounds. In 

such cases, the disclosure’s use of 

median weight loss instead could help 

avoid deception, e.g., ‘‘most users lose 

8 pounds’’ or ‘‘the typical user loses 8 

pounds.’’ 

(v) Assume that WeightAway’s 

manufacturer procured a fake consumer 

review, reading ‘‘I lost 50 pounds with 

WeightAway,’’ and had it published on 

a third-party review website. This 

endorsement is deceptive because it was 

not written by a bona fide user (see 

§ 255.1(c)). Moreover, the manufacturer 

would need competent and reliable 

scientific evidence that WeightAway is 

capable of causing 50-pound weight 

loss. 

(vi) Assume that WeightAway is a diet 

and exercise program and a person 

appearing in a WeightAway ad says, ‘‘I 

lost 50 pounds in 6 months with 

WeightAway.’’ Very few WeightAway 

users lose 50 pounds in 6 months and 

the ad discloses, ‘‘The typical weight 

loss of WeightAway users who stick 

with the program for 6 months is 35 

pounds.’’ In fact, only one-fifth of those 

who start the WeightAway program 

stick with it for 6 months. The 

disclosure is inadequate because it does 

not communicate what the typical 

outcome is for users who start the 

program. In other words, even with the 

disclosure, the ad does not 

communicate what people who join the 

WeightAway program can generally 

expect. 

(5) 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 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. 

(6) Example 6. An advertisement 

appears to show a ‘‘hidden camera’’ 

situation in a crowded cafeteria at 

breakfast time. A spokesperson for the 

advertiser asks a series of patrons of the 

cafeteria for their spontaneous, honest 

opinions of the advertiser’s recently 

introduced breakfast cereal. Even 

though none of the patrons is 

specifically identified during the 

advertisement, the net impression 

conveyed to consumers may well be that 

these are actual customers. If actors 

have been employed, this fact should be 

clearly and conspicuously disclosed. 

(7) Example 7. (i) 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. 

(ii) 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 or post about it on 

social media, that arrangement should 

be clearly and conspicuously disclosed 

(see § 255.5). 

(8) Example 8. (i) A camping goods 

retailer’s website has various product 

pages. Each product page provides 

consumers with the opportunity to 

review the product and rate it on a fivestar scale. Each such page displays the 

product’s average star rating and a 

breakdown of the number of reviews 

with each star rating, followed by 

individual consumers’ reviews and 

ratings. As such, the website is 

representing that it is providing an 

accurate reflection of the view of the 

purchasers who submitted product 

reviews to the website. If the retailer 

chose to suppress or otherwise not 

publish any reviews with fewer than 

four stars or reviews that contain 

negative sentiments, the product pages 


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2The Consumer Review Fairness Act makes it 

illegal for companies to include standardized 

contract provisions that threaten or penalize people 

for posting honest reviews. 15 U.S.C. 45b. 

would be misleading as to purchasers’ 

actual opinions of the products. 

(ii) If the retailer chose not to post 

reviews containing profanity, that 

would not be unfair or deceptive even 

if reviews containing profanity tend to 

be negative reviews. However, it would 

be misleading if the retailer blocked 

only negative reviews containing 

profanity, but posted positive reviews 

containing profanity. It would be 

acceptable for the retailer to have a 

policy against posting reviews unrelated 

to the product at issue or related 

services, for example reviews 

complaining about the owner’s policy 

positions. But it would be misleading if 

the retailer chose to filter reviews based 

on other factors that are only a pretext 

for filtering them based on negativity. 

Sellers are not required to display 

customer reviews that contain unlawful, 

harassing, abusive, obscene, vulgar, or 

sexually explicit content, or content that 

is inappropriate with respect to race, 

gender, sexuality, or ethnicity, or 

reviews that the seller reasonably 

believes are fake, so long as the criteria 

for withholding reviews are applied 

uniformly to all reviews submitted. 

Neither are sellers required to display 

reviews that are unrelated to their 

products or services. Customer service, 

delivery, returns, and exchanges are 

related to the seller’s products and 

services. 

(iii) Assume now, that each product 

page starts with a glowing five-star 

review that is labeled as ‘‘the most 

helpful review.’’ Labeling the review as 

the most helpful suggests it was voted 

most helpful by consumers visiting the 

website. If the initial review on each 

such page was selected by the retailer 

and was not selected as the most helpful 

review by other consumers, labeling it 

as the most helpful would be deceptive. 

(9) Example 9. A manufacturer offers 

to pay genuine purchasers $20 each to 

write positive reviews of its products on 

third-party review websites. Such 

reviews are deceptive even if the 

payment is disclosed because their 

positive nature is required by, rather 

than being merely influenced by, the 

payment. If, however, the manufacturer 

did not require the reviews to be 

positive and the reviewers understood 

that there were no negative 

consequences from writing negative 

reviews, a clear and conspicuous 

disclosure of the material connection 

would be appropriate (see § 255.5 and 

§ 255.6 (f)(2) (Example 6)). 

(10) Example 10. A manufacturer 

threatens consumers who post negative 

reviews of its products to third-party 

review websites with legal action or 

with physical threats in order to coerce 

the consumers to delete their reviews. 

Such threats amount to an unfair 

practice because consumers would be 

misled as to purchasers’ actual opinions 

of the product.2

(11) Example 11. A marketer contacts 

recent online, mail-order, and in-store 

purchasers of its products and asks 

them to provide feedback to the 

marketer. The marketer then invites 

purchasers who give very positive 

feedback to post online reviews of the 

products on third-party websites. Less 

pleased and unhappy purchasers are 

simply thanked for their feedback. Such 

a practice may be an unfair or deceptive 

practice if it results in the posted 

reviews being substantially more 

positive than if the marketer had not 

engaged in the practice. If, in the 

alternative, the marketer had simply 

invited all recent purchasers to provide 

feedback on third-party websites, the 

solicitation would not have been unfair 

or deceptive, even if it had expressed its 

hope for positive reviews. 

§ 255.3 Expert endorsements. 

(a) Whenever an advertisement 

represents, expressly 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 the endorser is represented as 

possessing with respect to the 

endorsement. 

(b) Although an expert may, in 

endorsing a product, take into account 

factors not within the endorser’s 

expertise (such as 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 the 

endorser has expertise and which are 

relevant to an ordinary consumer’s use 

of or experience with the product. 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 to another product or other 

products, 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 the endorser 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(e) regarding the liability of 

endorsers). 

(c) Examples: 

(1) 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 the endorser 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. 

(2) 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 audiology) or 

a physician without substantial 

experience in the area of hearing might 

be able to endorse the product, but at 

minimum, the advertisement must 

clearly and conspicuously disclose the 

nature and limits of the endorser’s 

expertise 

(3) 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. 

(4) Example 4. A manufacturer of a 

non-prescription drug product 

represents that its product has been 


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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. 

(5) Example 5. A person 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’ brands 

available to consumers, the service 

must, in fact, have such experience, and 

have determined, based on its expertise, 

that the endorsed product’s cleaning 

ability is at least equal (or superior, if 

such is the net impression conveyed by 

the advertisement) to that of the leading 

competitors’ products available to 

consumers. 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 

accumulated experience in evaluating 

cleansers without having performed 

side-by-side or scientific comparisons. 

(6) 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 the type of scientific 

evidence that others with the purported 

degree of expertise would consider 

adequate to support this conclusion 

about the product’s safety and efficacy. 

Under such circumstances, both the 

advertiser and the doctor would be 

liable for the doctor’s misleading 

representation (See § 255.1(d) and (e)). 

§ 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, 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(e) 

regarding the liability of endorsers). 

(a) Example 1. A mattress 

manufacturer 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. 

(b) Example 2. A trampoline 

manufacturer sets up and operates what 

appears to be an independent 

trampoline review website. The site 

reviews the manufacturer’s trampolines, 

as well as those of competing 

manufacturers. Because the website 

falsely appears to be independent, it is 

deceptive (see § 255.5). 

(c) Example 3. Assume that a third 

party operates a wireless headphone 

review website that provides rankings of 

different manufacturers’ wireless 

headphones from most recommended to 

least recommended. The website 

operator accepts money from 

manufacturers in exchange for higher 

rankings of their products. Regardless of 

whether the website makes express 

claims of objectivity or independence, 

such paid-for rankings are deceptive. A 

headphone manufacturer who pays for a 

higher ranking on the website may also 

be held liable for the deception. A 

disclosure that the website operator 

receives payments from headphone 

manufacturers would be inadequate 

because the payments actually 

determine the headphones’ relative 

rankings. If, however, the review 

website does not take payments for 

higher rankings, but receives payments 

from some of the headphone 

manufacturers, such as for affiliate link 

referrals, it should clearly and 

conspicuously disclose that it receives 

such payments (see § 255.5(k)(11)). 

§ 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 and that 

connection is not reasonably expected 

by the audience, such connection must 

be disclosed clearly and conspicuously. 

Material connections can include a 

business, family, or personal 

relationship. They can include 

monetary payment or the provision of 

free or discounted products or services 

(including products or services 

unrelated to the endorsed product) to an 

endorser, regardless of whether the 

advertiser requires an endorsement in 

return. Material connections can also 

include other benefits to the endorser, 

such as early access to a product or the 

possibility of being paid, of winning a 

prize, or of appearing on television or in 

other media promotions. Some 

connections may be immaterial because 

they are too insignificant to affect the 

weight or credibility given to 

endorsements. Material connections do 

not need to be disclosed when they are 

understood or expected by all but an 

insignificant portion of the audience for 

an endorsement. A disclosure of a 

material connection does not require the 

complete details of the connection, but 

it must clearly communicate the nature 

of the connection sufficiently for 

consumers to evaluate its significance. 

Additional guidance is provided by the 

examples in paragraphs (a) through (l) of 

this section. 

(a) 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 


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44304 Federal Register / Vol. 87, No. 142 / Tuesday, July 26, 2022 / Proposed Rules 

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 the 

advertisement. 

(b) Example 2. A film star endorses a 

particular food product in a television 

commercial. 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. 

(c) Example 3. (1) 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 the player’s career and during 

this time the player has risen to their 

highest level ever in the rankings. The 

player responds by attributing that 

improvement to seeing the ball better, 

ever since having laser vision correction 

surgery at a specific identified clinic. 

The athlete continues talking about the 

ease of the procedure, the kindness of 

the clinic’s doctors, the short recovery 

time, and now being able to engage in 

a variety of activities without glasses, 

including driving at night. The athlete 

does not disclose having a contractual 

relationship with the clinic that 

includes payment for speaking publicly 

about the surgery. 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 during the 

interview that the athlete has been 

engaged as a spokesperson for the clinic, 

this endorsement is likely to be 

deceptive. A disclosure during the 

show’s closing credits would not be 

clear and conspicuous. Furthermore, if 

consumers are likely to take away from 

the interview that the athlete’s 

experience is typical of those who 

undergo the same procedure at the 

clinic, the advertiser must have 

substantiation for that claim. 

(2) Assume that the tennis player also 

touts the results of the surgery— 

mentioning the clinic by name—in a 

social media post. Consumers might not 

realize that the athlete is a paid endorser 

and, because that information might 

affect the weight consumers give to the 

tennis player’s endorsement, the 

relationship with the clinic should be 

disclosed—regardless of whether it paid 

the athlete for that particular post. It 

should be disclosed even if the 

relationship involves no payments but 

only the tennis player getting the laser 

correction surgery for free or at a 

reduced cost. 

(3) Assume that the clinic uses the 

tennis player’s endorsement in its own 

social media posts. The clinic should 

clearly and conspicuously disclose its 

relationship to the athlete in its posts. 

(4) Assume that during the 

appearance on the television talk show, 

the tennis player is wearing clothes 

bearing the insignia of an athletic wear 

company with which the athlete also 

has an endorsement contract. Although 

this contract requires wearing the 

company’s clothes not only on the court 

but also in public appearances, when 

possible, the athlete does not mention 

the clothes or the company during the 

appearance on the show. No disclosure 

is required because no representation is 

being made about the clothes in this 

context. 

(d) Example 4. (1) A television ad for 

an anti-snoring product features a 

physician who says, ‘‘I have seen 

dozens of products come on the market 

over the years and, in my opinion, this 

is the best ever.’’ Consumers would 

expect the physician to be reasonably 

compensated for appearing in the ad. 

Consumers are unlikely, however, to 

expect that an expert endorser like the 

physician receives a percentage of gross 

product sales or owns part of the 

company, and either of these facts 

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. 

(2) Assume that the physician is also 

paid to post about the product on social 

media, a context in which consumers 

might not expect that the physician was 

compensated and more likely to expect 

that the physician is expressing an 

independent, professional opinion. 

Accordingly, the post should clearly 

and conspicuously disclose the doctor’s 

connection with the company. 

(e) Example 5. (1) In a television 

advertisement, an actual patron of a 

restaurant, who is neither known to the 

public nor presented as an expert, is 

shown seated at the counter. The diner 

is asked for a ‘‘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 television promotion of its new 

‘‘meat-alternative’’ burger. A patron 

seeing such a sign might be more 

inclined to give a positive review of that 

item in order to appear on television. 

The advertisement should thus clearly 

and conspicuously inform viewers that 

the patrons on screen knew in advance 

that they might appear in a television 

advertisement if they gave the burger a 

good review because that information 

may materially affect the weight or 

credibility of the endorsement. 

(2) Assume, in the alternative, that the 

advertiser had not posted the sign and 

that patrons asked for their opinions 

about the burger did not know or have 

reason to believe until after their 

response that they were being recorded 

for use in an advertisement. No 

disclosure is required here, even if 

patrons were also told, after the 

interview, that they would be paid for 

allowing the use of their opinions in 

advertising. 

(f) Example 6. (1) An infomercial 

producer wants to include consumer 

endorsements in an infomercial for an 

automotive additive product not yet on 

the market. The producer’s staff selects 

several people who work as ‘‘extras’’ in 

commercials and asks them to use the 

product and report back, telling them 

that they will be paid a small amount 

if selected to endorse the product in the 

infomercial. Viewers would not expect 

that these ‘‘consumer endorsers’’ are 

actors who used the product in the hope 

of appearing in the commercial and 

receiving compensation. Because the 

advertisement fails to disclose these 

facts, it is deceptive. 

(2) Assume that the additive’s 

marketer wants to have more consumer 

reviews appear on its retail website 

which sells a variety of its automotive 

products. The marketer recruits 

ordinary consumers to get a free product 

(e.g., a set of jumper cables or a portable 

air compressor for car tires) and a $30 

payment in exchange for posting a 

consumer review of the free product on 

the marketer’s website. The marketer 

makes clear and the reviewers 

understand that they are free to write 

negative reviews and that there are no 

negative consequences of doing so. Any 

resulting review that fails to clearly and 

conspicuously disclose the incentives 

provided to that reviewer is likely 

deceptive (When the resulting reviews 

must be positive or reviewers believe 

they might face negative consequences 

from posting negative reviews, a 

disclosure would be insufficient, see 


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Federal Register / Vol. 87, No. 142 / Tuesday, July 26, 2022 / Proposed Rules 44305 

1Werner Geyser, The State of Influencer 

Marketing 2022: Benchmark Report, Influencer 

Mktg. Hub (Mar. 2, 2022), https://influencer

marketinghub.com/influencer-marketingbenchmark-report/. 

2 Id. In addition, the global number of influencer 

marketing related service offerings grew by 26% in 

2021 alone, reaching 18,900 firms offering or 

specializing in influencer marketing services. 

3Ellen Simon, How Instagram Makes Money, 

Investopedia (March 17, 2022), https://

www.investopedia.com/articles/personal-finance/

030915/how-instagram-makes-money.asp (noting 

that, in 2019, Instagram generated $20 billion in 

advertising revenue and that 69% of America’s 

marketers planned to spend most of their 2020 

influencer budget on Instagram). 

§ 255.2(d) and (e)(9)). Even if adequate 

disclosures appear in each incentivized 

review, the practice could still be 

deceptive if the solicited reviews 

contain star ratings that are included in 

an average star rating for the product 

and including the incentivized reviews 

materially increases that average star 

rating. 

(g) Example 7. A woodworking 

influencer posts on-demand videos of 

various projects. A tool manufacturer 

sends the influencer an expensive fullsize lathe in the hope that the influencer 

would post about it. The woodworker 

uses the lathe for several products and 

comments favorably about it in videos. 

If a significant proportion of viewers are 

likely unaware that the influencer 

received the lathe free of charge, the 

woodworker should clearly and 

conspicuously disclose receiving it for 

free, a fact that could affect the 

credibility that viewers attach to the 

endorsements. The manufacturer should 

advise the woodworker at the time it 

provides the lathe that this connection 

should be disclosed, and it should have 

reasonable procedures in place to 

monitor the influencer’s postings for 

compliance and follow those procedures 

(see § 255.1(d)). 

(h) Example 8. An online community 

has a section dedicated to discussions of 

robotic products. Community members 

ask and answer questions and otherwise 

exchange information and opinions 

about robotic products and 

developments. Unbeknownst to this 

community, an employee of a leading 

home robot manufacturer has been 

posting messages on the discussion 

board promoting the manufacturer’s 

new product. Knowledge of this poster’s 

employment likely would affect the 

weight or credibility of the 

endorsements. Therefore, the poster 

should clearly and conspicuously 

disclose their relationship to the 

manufacturer to community members. 

To limit its own liability for such posts, 

the employer should be engaged in 

appropriate training of employees. To 

the extent that the employer has 

directed such endorsements or 

otherwise has reason to know about 

them, it should also be monitoring them 

and taking other steps to ensure 

compliance (see § 255.1(d)). The 

disclosure requirements in this example 

would apply equally to consumer 

reviews of the product posted on retail 

websites or review platforms. 

(i) Example 9. A college student signs 

up to be part of a program in which 

points are awarded each time a 

participant posts on social media about 

a particular advertiser’s products. 

Participants can then exchange their 

points for prizes, such as concert tickets 

or electronics. These incentives would 

materially affect the weight or 

credibility of the college student’s 

endorsements. They should be clearly 

and conspicuously disclosed, and the 

advertiser should take steps to ensure 

that these disclosures are being 

provided. 

(j) Example 10. Great Paper Company 

sells photocopy paper with packaging 

that has a seal of approval from the No 

Chlorine Products Association, a nonprofit third-party association. Great 

Paper Company paid the No Chlorine 

Products Association a reasonable fee 

for the evaluation of its product and its 

manufacturing process. Consumers 

would reasonably expect that marketers 

have to pay for this kind of certification. 

Therefore, there is no unexpected 

material connection between the 

company and the association, and the 

use of the seal without disclosure of the 

fee paid to the association would not be 

deceptive. 

(k) Example 11. A coffee lover creates 

a blog that reviews coffee makers. The 

blogger writes the content 

independently of the marketers of the 

coffee makers, but includes affiliate 

links to websites on which consumers 

can buy these products from their 

marketers. Whenever a consumer clicks 

on such a link and buys the product, the 

blogger receives a small portion of the 

sale. Because knowledge of this 

compensation could affect the weight or 

credibility site visitors give to the 

blogger’s reviews, the reviews should 

clearly and conspicuously disclose the 

compensation. 

(l) Example 12. (1) Near the beginning 

of a podcast, the host reads what is 

obviously a commercial for a product. 

Even without a statement identifying 

the advertiser as a sponsor, listeners 

would likely still expect that the 

podcaster was compensated, so there is 

no need for a disclosure of payment for 

the commercial. Depending upon the 

language of the commercial, however, 

the audience may believe that the host 

is expressing their own views in the 

commercial, in which case the host 

would need to hold the views expressed 

(see § 255.0(b)). 

(2) Assume that the host also 

mentions the product in a social media 

post. The fact that the host did not have 

to make a disclosure in the podcast has 

no bearing on whether there has to be 

a disclosure in the social media post. 

§ 255.6 Endorsements directed to children. 

Endorsements in advertisements 

addressed to children may be of special 

concern because of the character of the 

audience. Practices which would not 

ordinarily be questioned in 

advertisements addressed to adults 

might be questioned in such cases. 

By direction of the Commission. 

April J. Tabor, 

Secretary. 

Note: The following statement will not 

appear in the Code of Federal Regulations: 

Statement of Chair Lina M. Khan Regarding 

the Endorsement Guides Review May 19, 

2022. 

Today, the Commission is voting on 

releasing proposed revised ‘‘Guides 

Concerning Use of Endorsements and 

Testimonials in Advertising’’ and 

publishing a Notice seeking comment 

on them (‘‘Revised Guides’’). These 

Guides tell companies how to use 

endorsements, testimonials, influencers, 

and consumer reviews in ads without 

deceiving consumers. 

These revisions come at a time when 

influencer marketing is becoming 

increasingly prevalent and as consumers 

increasingly rely on online consumer 

reviews to decide what to buy. Reports 

indicate that the global influencer 

marketing industry is set to grow to 

approximately $16.4 billion in 2022.1

Indeed, more than 75% of brand 

marketers intend to dedicate a budget to 

influencer marketing in 2022.2

Influencers who are paid, receive free 

product or services, or have a 

relationship with a brand sometimes fail 

to disclose that material connection, 

hoping to appear more authentic to 

consumers. Consumers’ increasing 

reliance on online reviews can also 

incentivize advertisers to harness fake 

reviews, suppress negative reviews, and 

amplify positive ones. 

I want to highlight three novel aspects 

of these Revised Guides that strike me 

as especially important. 

First is the Revised Guides’ guidance 

on platforms’ relationships with 

influencer marketing. Digital platforms 

profit from influencer marketing and 

should bear greater responsibility in this 

area.3 The Revised Guides warn that 

some platforms’ disclosure tools are 

inadequate and may expose influencers 


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44306 Federal Register / Vol. 87, No. 142 / Tuesday, July 26, 2022 / Proposed Rules 

4 Decision and Order, In re Fashion Nova, LLC, 

No. C–4759 (F.T.C. 2022), https://www.ftc.gov/ 

system/files/ftc_gov/pdf/ 

1923138C4759FashionNovaOrder_0.pdf. 

5Agnieszka Guttmann, Kids Advertising Spending 

Worldwide 2012–2021, By Format, Statista (April 7, 

2020), https://www.statista.com/statistics/750865/ 

kids-advertising-spending-worldwide/. 

6Miriam Rahali & Sonia Livingstone, 

#SponsoredAds: Monitoring Influencer Marketing 

to Young Audiences 8 (2002), http://

eprints.lse.ac.uk/113644/7/Sponsoredads_policy_

brief.pdf. 

7See, e.g., Letter from Rep. Eshoo, Rep. Castor & 

Sen. Markey to Joseph J. Simons, Chair, Fed. Trade 

Comm’n (Aug. 22, 2019), https://eshoo.house.gov/

sites/eshoo.house.gov/files/wysiwyg_uploaded/

Eshoo-Markey-Castor%20follow%20up%20

letter%20to%20FTC%20re%20predatory%20

online%20ads%20%28002%29.pdf; Letter from 

Sen. Blumenthal, Sen. Markey, and Rep. Eshoo to 

Joseph J. Simons, Chair, Fed. Trade Comm’n (Dec. 

6, 2019), https://www.blumenthal.senate.gov/imo/ 

media/doc/2019.12.06%20-%20FTC%20-

%20Child%20Influencers.pdf; Letter from Laura 

Smith, Legal Director, Truth in Advertising, Inc. & 

Bonnie Patten, Executive Director, Truth in 

Advertising, Inc. to Andrew Smith, Director, Bureau 

of Consumer Prot., Fed. Trade Comm’n & Mary 

Engle, Associate Director, Div. of Advertising 

Pracs., Fed. Trade Comm’n (Aug. 28, 2019), https:// 

truthinadvertising.org/wp-content/uploads/2019/ 

08/8_28_19-ltr-to-FTC-re-Ryan-ToysReview_

Redacted.pdf. 

1On July 19, 2022, the Commission voted 5–0 to 

issue this notice terminating rulemaking. 

to liability or, in some instances, leave 

platforms themselves open to liability. 

Second is the Revised Guides’ explicit 

guidance on consumer reviews, and 

specifically the discussion of how 

encouraging fake reviews and 

suppressing negative reviews can result 

in law violations. This guidance reflects 

recent enforcement actions the agency 

has taken—including a recent final 

order settling allegations that Fashion 

Nova blocked negative reviews of its 

products from being posted on its 

website.4

Third is the Revised Guides’ warning 

that child-directed influencer 

advertising is of special concern to the 

Commission. Those who market to 

children cannot assume that compliance 

with these guides is a safe harbor. 

The kid influencer marketplace is 

estimated to be as large as $1.7 billion 

and is rapidly growing.5 This type of 

child-directed influencer advertising 

can pose a host of risks. As one recent 

report noted, ‘‘unless children are able 

to differentiate between advertising and 

other forms of entertainment, and grasp 

the persuasive intent of advertising, 

then they are at risk of deception. This 

is especially true for children under 12, 

whose advertising literacy—all 

knowledge and skills related to 

understanding advertising—has not yet 

fully developed.’’ 6

There is currently no clear or 

consistent approach to addressing the 

problem, and Congress and advocacy 

groups have called on the FTC to 

provide guidance on this issue.7 While 

we presently lack the full evidentiary 

record to support specific guidance or to 

propose best practices, I am eager for 

more input that will support more 

concrete action in this important area. 

Accordingly, in tandem with issuing the 

Revised Guides today, we are 

announcing an event to gather 

information on stealth advertising 

targeting children. The public event will 

be held in October and will focus on the 

blurring of advertising and 

programming content in child-directed 

digital media. 

I am eager for robust participation at 

this event and will look forward to 

learning from the public as we consider 

how to move forward on this important 

and timely issue. 

[FR Doc. 2022–12327 Filed 7–25–22; 8:45 am] 

BILLING CODE 6750–01–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Parts 1112, 1130, and 1240 

[CPSC Docket No. CPSC–2020–0010] 

Safety Standard for Crib Bumpers/ 

Liners; Withdrawal 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Termination of rulemaking. 

SUMMARY: On May 16, 2022, the 

President signed into law the Safe Sleep 

for Babies Act of 2021 (SSBA), requiring 

that crib bumpers, ‘‘regardless of the 

date of manufacture, shall be considered 

a banned hazardous product’’ under the 

Consumer Product Safety Act (CPSA). In 

light of that new statutory direction, 

CPSC is terminating its pending 

rulemaking proceeding on crib 

bumpers/liners, and in a separate notice 

of proposed rulemaking, proposing to 

codify the requirements for crib 

bumpers pursuant to the SSBA. The 

Commission is also terminating the 

related proposed rule amendment to 

include the safety standard for crib 

bumpers/liners in the list of notice of 

requirements, as well as the related 

proposed amendment to identify ‘‘crib 

bumpers/liners’’ as a durable infant or 

toddler product subject to CPSC’s 

consumer registration requirements. 

DATES: The notice of proposed 

rulemaking published at 85 FR 18878, 

April 3, 2020, is withdrawn as of July 

26, 2022. 

ADDRESSES: U.S. Consumer Product 

Safety Commission, 4330 East West 

Highway, Bethesda, MD 20814. 

FOR FURTHER INFORMATION CONTACT: 

Pamela J. Stone, Attorney Advisor, U.S. 

Consumer Product Safety Commission, 

4330 East West Highway, Bethesda, MD 

20814; telephone: (301) 504–7619; 

email: pstone@cpsc.gov. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 3 of the Safe Sleep for Babies 

Act of 2021, H.R. 3182, Public Law 117– 

126 (SSBA), the Commission is 

terminating the rulemaking on crib 

bumpers/liners it commenced under 

section 104 of the Consumer Product 

Safety Improvement Act of 2008 

(CPSIA), CPSC Docket No. CPSC–2020– 

0010.1 Under a separate Federal 

Register document, published 

elsewhere in this issue of the Federal 

Register, CPSC is issuing a proposed 

rule stating that crib bumpers are 

banned under the SSBA. 

On April 3, 2020, the Commission 

published a notice of proposed 

rulemaking (NPR) that set forth 

proposed requirements for a safety 

standard for crib bumpers/liners 

pursuant to section 104 of the CPSIA (85 

FR 18878). The Commission received 

comments on the proposed rule but has 

not published a final rule. 

On May 3, 2022, Congress passed the 

SSBA, which the President signed on 

May 16, 2022. Section 3 of the SSBA 

requires that, not later than 180 days 

after enactment, ‘‘crib bumpers, 

regardless of the date of manufacture, 

shall be considered a banned hazardous 

product under section 8 of the 

Consumer Product Safety Act (15 U.S.C. 

2057).’’ 15 U.S.C. 2057e. 

In light of the SSBA’s mandate that 

crib bumpers shall be considered a 

banned hazardous product under 

section 8 of the CPSA, CPSC is no 

longer proposing to regulate crib 

bumpers under the CPSIA and is 

terminating that rulemaking to establish 

a consumer product safety standard for 

crib bumpers/liners. In a separate 

Federal Register notice, CPSC proposes 

to issue a rule stating that crib bumpers 

are banned pursuant to the SSBA’s 

designation of crib bumpers as a banned 

hazardous product. 

The termination of the crib bumpers/ 

liners rulemaking includes termination 

of the proposal to amend 16 CFR part 

1130 to include ‘‘crib bumpers/liners’’ 

in the definition of a ‘‘durable infant or 

toddler product.’’ 85 FR at 18893. The 

termination of this rulemaking 

additionally terminates the proposal to 

issue a notice of requirements for crib 

bumpers/liners, which proposed to 

amend 16 CFR part 1112 to include 16 

CFR part 1240, the CFR section where 

the crib bumpers/liners standard would 


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