R.I.P. individual results will vary: FTC guidance on endorsements and testimonials may pose some significant challenges to marketers.
The most significant revision to these guides is the deletion of the "safe harbor" that has long allowed advertisers to use testimonials that reported specific successful experiences (e.g.,"I lost 20 pounds and 10 inches in 8 weeks") as long as the advertiser included a disclaimer such as" results not typical." Under the revised guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect.
Part 255.2(b) of the revised guides (which have an effective date of December 1,2009) reads as follows: "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 ... 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 FTC acknowledged that the "critical question" for determining whether an ad is deceptive is always" what is the net impression consumers take away from the ad as a whole." Each advertisement containing testimonials must be examined individually to determine whether it makes an unsubstantiated typicality claim.
The FTC also believes it is "likely" that testimonials presenting the specific experiences of a product user will be viewed as claiming that those experiences are typical of what consumers will generally experience. While the FTC has concluded that "results not typical" usually won't get the job done, they do admit that a "clear, conspicuous, and informative" disclaimer could be effective.
But a new example the FTC has added to the guides makes it clear that even a typicality super that is much stronger than most marketers would want to use may not be strong enough: "A brochure for a baldness treatment consists entirely of testimonials from satisfied customers who say that after using the product, they had amazing hair growth ... [E]ven 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.
The FTC responded to those who argued that disclosing what the typical consumer could expect to achieve is impractical or extremely difficult by explaining that advertisers are not required to identify a typical consumer and then determine "with precision" what he or she would achieve with the product. Rather, the advertiser must disclose "the generally expected performance" of the product "in the depicted circumstances."
According to the agency, this language provides "some reasonable leeway" to advertisers. "Generally expected" was used rather than "average" in order to communicate the disclosure would not need to be based on" an exact mathematical average of users of the product."
In some cases, an advertiser might be able to limit the burden imposed by the disclosure requirement by identifying the specific population from which the testimonials were chosen. But while it would be possible to use the results of subjects in a valid clinical study as the basis for a "generally expected performance" disclosure (e.g., "In an 8-week clinical study, men who were at least 30 pounds overweight lost an average of 2 pounds per week"), the FTC would likely not be satisfied by a disclosure based on the results achieved by a small number of participants in a less formal" user group."
It is clear the FTC is still highly skeptical of advertising that contains consumer testimonials. According to the agency, "Even truthful consumer testimonials provide only marginally useful information to consumers." While the FTC admits that obtaining the data necessary to support a "generally expected performance" disclosure "will entail costs associated with the data collection and analysis," it offers cold comfort to small businesses or new companies who can't handle that burden.
In the FTC's view, the old typicality disclaimer" safe harbor," which has been part of these guides since 1980, was a loophole that allowed advertisers who utilized testimonials to be "exempt from those basic obligations" to which other advertisers have always been subject. If an advertiser uses testimonials in such a way as to trigger the" generally expected performance" disclosure requirement, but doesn't have the data to meet that standard, it will have to be satisfied with using more general testimonials that don't mention specific consumer experiences.
The FTC" says advertisers can use testimonials like "I've tried many products and this was the best." But bland testimonials like that are unlikely to be effective in today's competitive marketing environment. Most marketers will want to follow a different approach in order to use testimonials effectively and still comply with the revised guides.
In summary, the practical difficulties of disclosing the" generally expected performance" of consumers will be significant for many or most advertisers--meeting that standard could require the marketer to perform clinical research. While it may be practical for some marketers to generate the necessary data to support a typicality claim, it may be more productive for advertisers to focus on creating testimonial-driven advertising that avoids conveying such a claim in the first place.
Properly utilized, traditional typicality disclaimers will still be helpful. But the dare of being able to rely solely on "Results not typical "supers may be gone forever.
About the author: Gary Hailey, a partner at Venable, Washington, D.C., contributed to this column.
Todd Harrison is partner with Venable, which is located in Washington, D.C. He advises food and drug companies on a variety of FDA and FTC matters, with an emphasis on dietary supplement, functional food, biotech, legislative, adulteration, labeling and advertising issues. He can be reached at 575 7th St. NW, Washington, D.C. 20004; Telephone: 202-344-4724; E-mail: firstname.lastname@example.org
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|Title Annotation:||Capitol Comments|
|Author:||Harrison, Todd; Hailey, Gary|
|Date:||Nov 1, 2009|
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