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- PART 255 -- GUIDES CONCERNING USE OF ENDORSEMENTS AND
- TESTIMONIALS IN ADVERTISING
-
- Sec.
- 255.0 Definitions.
- 255.1 General considerations.
- 255.2 Consumer endorsements.
- 255.3 Expert endorsements.
- 255.4 Endorsements by organizations.
- 255.5 Disclosure of material connections.
-
- AUTHORITY: 38 Stat. 717, as amended: 15 U.S.C. 41-58.
-
- 255.0 Definitions.
-
- (a) The Commission intends to treat endorsements and testi-
- monials identically in the context of its enforcement of the
- Federal Trade Commission Act and for purposes of this part. The
- term "endorsements" is therefore generally used hereinafter to
- cover both terms and situations.
-
- (b) For purposes of this part, an "endorsement" means any
- advertising message (including verbal statements, demonstrations,
- or depictions of the name, signature, likeness or other identify-
- ing personal characteristics of an individual or the name or seal
- of an organization) which message consumers are likely to believe
- reflects the opinions, beliefs, findings, or experience of a
- party other than the sponsoring advertiser. The party whose
- opinions, beliefs, findings, or experience the message appears to
- reflect will be called the endorser and may be an individual,
- group or institution.
-
- (c) 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 that generally acquired by ordinary individuals.
-
- Example 1: A film critic's review of a movie is excerpted
- in an advertisement. When so used, the review meets the defini-
- tion of an endorsement since it is viewed by readers as a state-
- ment of the critic's own opinions and not those of the film
- producer, distributor or exhibitor. Therefore, any alteration in
- or quotation from the text of the review which does not fairly
- reflect its substance would be a violation of the standards set
- by this part.
-
- Example 2: A TV commercial depicts two women in a
- supermarket buying a laundry detergent. The women are not iden-
- tified outside the context of the advertisement. One comments to
- the other how clean her brand makes her family's clothes, and the
- other then comments that she will try it because she has not been
- fully satisfied with her own brand. This obvious fictional
- dramatization of a real life situation would not be an endorse-
- ment.
-
- Example 3: In an advertisement for a pain remedy, an an-
- nouncer who is not familiar to consumers except as a spokesman
- for the advertising drug company praises the drug's ability to
- deliver fast and lasting pain relief. He purports to speak, not
- on the basis of his own opinions, but rather in the place of and
- on behalf of the drug company. Such an advertisement would not
- be an endorsement.
- Example 4: A manufacturer of automobile tires hires a well
- known professional automobile racing driver to deliver its adver-
- tising message in television commercials. In these commercials,
- the driver speaks of the smooth ride, strength and long life of
- the tires. Even though the message is not expressly declared to
- be the personal opinion of the driver, it may nevertheless con-
- stitute an endorsement of the tires. Many consumers will recog-
- nize this individual as being primarily a racing driver and not
- merely a spokesman or announcer for the advertiser. Accordingly,
- they may well believe the driver would not speak for an automo-
- bile product unless he/she actually believed in what he/she was
- saying and had personal knowledge sufficient to form that belief.
- Hence they would think that the advertising message reflects the
- driver's personal views as well as those of the sponsoring adver-
- tiser. This attribution of the underlying views to the driver
- brings the advertisement within the definition of an endorsement
- for purposes of this part.
-
- Example 5: A television advertisement for golf balls shows
- a prominent and well-recognized professional golfer hitting the
- golf balls. This would be an endorsement by the golfer even
- though he makes no verbal statement in the advertisement.
-
- [40 FR 22128, May 21, 1975, as amended at 45 Fr 3872, Jan. 18,
- 1980.]
-
- 255.1 General considerations.
-
- (a) Endorsements must always reflect the honest opinions,
- findings, beliefs, or experience of the endorser. Furthermore,
- they may not contain any representations which would be decep-
- tive, or could not be substantiated if made directly by the
- advertiser. [See Example 2 to Guide 3 (255.3) illustrating that a
- valid endorsement may constitute all or part of an advertiser's
- substantiation.]
-
- (b) The endorsement message need not be phrased in the exact
- words of the endorser, unless the advertisement affirmatively so
- represents. However, the endorsement may neither be presented
- out of context nor 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 as 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 inter-
- vals where reasonableness will be determined by such factors as
- new information on the performance or effectiveness of the
- product, a material alteration in the product, changes in the
- performance of competitors' products, and the advertiser's con-
- tract commitments.
-
- (c) In particular, where the advertisement represents that
- the endorser uses the endorsed product, then 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 he 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.]
-
- Guide 1, Example 1: A building contractor states in an
- advertisement that he specifies the advertiser's exterior house
- paint because of its remarkable quick drying properties and its
- durability. This endorsement must comply with the pertinent
- requirements of Guide 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 specify the
- paint and to subscribe to the views presented previously.
-
- Example 2: A television advertisement portrays a woman
- seated at a desk on which rest five unmarked electric typewrit-
- ers. An announcer says "We asked Mrs. X, an executive secretary
- for over ten years, to try these five unmarked typewriters and
- tell us which one she liked best."
-
- The advertisement portrays the secretary typing on each
- machine, and then picking the advertiser's brand. The announcer
- asks her why, and Mrs. X gives her reasons. Assuming that con-
- sumers would perceive this presentation as a "blind" test, this
- endorsement would probably not represent that Mrs. X actually
- uses the advertiser's machines in her work. In addition, the
- endorsement may also be required to meet the standards of Guide 3
- on Expert Endorsements.
-
- [Guide 1]
-
- [45 FR 3872, Jan. 18, 1980]
-
- 255.2 Consumer endorsements.
-
- (a) An advertisement employing an endorsement reflecting the
- experience of an individual or a group of consumers on a central
- or key attribute of the product or service will be interpreted as
- representing that the endorser's experience is representative of
- what consumers will generally achieve with the advertised product
- in actual, albeit variable, conditions of use. Therefore, unless
- the advertiser possesses and relies upon adequate substantiation
- for this representation, the advertisement should either clearly
- and conspicuously disclose what the generally expected perform-
- ance would be in the depicted circumstances or clearly and con-
- spicuously disclose the limited applicability of the endorser's
- experience to what consumers may generally expect to achieve.
- The Commission's position regarding the acceptance of disclaimers
- or disclosures is described in the preamble to these Guides
- published in the FEDERAL REGISTER on January 18, 1980.
-
- (b) Advertisements presenting endorsements by what are
- represented, directly or by implication, to be "actual consumers"
- should utilize actual consumers, in both the audio and video or
- clearly and conspicuously disclose that the persons in such
- advertisements are not actual consumers of the advertised
- product.
-
- (c) Claims concerning the efficacy of any drug or device as
- defined in the Federal Trade Commission Act, 15 U.S.C. 55, shall
- not be made in lay endorsements unless (1) the advertiser has
- adequate scientific substantiation for such claims and (2) the
- claims are not inconsistent with any determination that has been
- made by the Food and Drug Administration with respect to the drug
- or device that is the subject of the claim.
-
- Guide 2, Example 1: An advertisement presents the endorse-
- ment of an owner of one of the advertiser's television sets. The
- consumer states that she has needed to take the set to the shop
- for repairs only one time during her 2-year period of ownership
- and the costs of servicing the set to date have been under
- $10.00. Unless the advertiser possesses and relied upon adequate
- substantiation for the implied claim that such performance re-
- flects that which a significant proportion of consumers would be
- likely to experience, the advertiser should include a disclosure
- that either states clearly and conspicuously what the generally
- expectable performance would be or clearly and conspicuously
- informs consumers that the performance experienced by the endors-
- er is not what they should expect to experience. The mere dis-
- closure that "not all consumers will get this result." is insuf-
- ficient because it can imply that while all consumers cannot
- expect the advertised results, a substantial number can expect
- them. [See the cross reference in Guide 2(a) regarding the
- acceptability of disclaimers or disclosures.]
-
- Example 2: An advertiser 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 be-
- tween the advertised mix and their own cakes baked from scratch.
- Many of the consumers are actually pictured in the advertisement
- along with relevant, quoted portions of their statements endors-
- ing the product. This use of the results of a poll or survey of
- consumers probably represents a promise to consumers that this is
- the typical result that ordinary consumers can expect from the
- advertiser's cake mix.
-
- Example 3: An advertisement purports to portray a "hidden
- camera" situation in a crowded cafeteria at breakfast time. A
- spokesperson for the advertiser asks a series of actual patrons
- of the cafeteria for their spontaneous, honest opinions of the
- advertiser's recently introduced breakfast cereal. Even though
- the words "hidden camera" are not displayed on the screen, and
- even though none of the actual patrons is specifically identified
- during the advertisement, the net impression conveyed to consum-
- ers may well be that these are actual customers, and not actors.
- If actors have been employed, this fact should be disclosed.
-
- [Guide 2]
-
- [45 FR 3872, Jan. 18, 1980]
-
- 255.3 Expert endorsements.
-
- (a) Whenever an advertisement represents, directly or by
- implication, that the endorser is an expert with respect to the
- endorsement message, then the endorser's qualifications must in
- fact give him the expertise that he is represented as possessing
- with respect to the endorsement.
-
- (b) While the expert may, in endorsing a product, take into
- account factors not within his expertise (e.g., matters of taste
- or price), his endorsement must be supported by an actual exer-
- cise of his expertise in evaluating product features or charac-
- teristics with respect to which he is expert and which are both
- relevant to an ordinary consumer's use of or experience with the
- product and also are available to the ordinary consumer. This
- evaluation must have included an examination or testing of the
- product at least as extensive as someone with the same degree of
- expertise would normally need to conduct in order to support the
- conclusions presented in the endorsement. Where, and to the
- extent that, the advertisement implies that the endorsement was
- based upon a comparison such comparison must have been included
- in his evaluation; and as a result of such comparison, he must
- have concluded that, with respect to those features on which he
- 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 creat-
- ed 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.
-
- Example 1: An endorsement of a particular automobile by one
- described as an "engineer" implies that the endorser's profes-
- sional training and experience are such that he is well acquaint-
- ed with the design and performance of automobiles. If the en-
- dorser's field is, for example, chemical engineering, the en-
- dorsement would be deceptive.
-
- Example 2: A manufacturer of automobile parts advertises
- that its products are approved by the "American Institute of
- Science." From its very name, consumers would infer that the
- "American Institute of Science" is a bona fide independent test-
- ing 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.
- Even if the American Institute of Science is such a bona fide
- expert testing organization, as consumers would expect, the
- endorsement may nevertheless be deceptive unless the Institute
- has conducted valid scientific tests of the advertised products
- and the test results support the endorsement message.
-
- Example 3: A manufacturer of a non-prescription drug
- product represents that its product has been selected in prefer-
- ence to 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 decep-
- tive because the basis for the choice of the manufacturer's
- product, convenience of packaging, is neither relevant nor avail-
- able to the consumers.
-
- Example 4: The president of a commercial "home cleaning
- service" states in a television advertisement that the services
- uses a particular brand of cleanser in its business. Since the
- cleaning service's professional success depends largely upon the
- performance of the cleansers it uses, consumers would expect the
- service to be expert with respect to judging cleansing ability;
- and not be satisfied using an inferior cleanser in its business
- when it knows of a better one available to it. Accordingly, the
- cleaning service's endorsement must at least conform to those
- consumer expectations. The service must, of course, actually use
- the endorsed cleanser. Additionally, on the basis of its exper-
- tise, it must have determined that the cleansing ability of the
- endorsed cleanser is at least equal (or superior, if such is the
- net impression conveyed by the advertisement) to that of compet-
- ing products with which the service has had experience and which
- remain reasonably available to it. Since 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 suffi-
- cient if the service has relied solely upon its accumulated
- experience in evaluating cleansers without having to have per-
- formed side-by-side or scientific comparisons.
-
- Example 5: An association of professional athletes states
- in an advertisement that it has "selected" a particular brand of
- beverages as its "official breakfast drink." As in Example 4,
- the association would be regarded as expert in the field of
- nutrition for purposes of this section, because consumers would
- expect it to rely upon the selection of nutritious foods as part
- of its business needs. Consequently, the association's endorse-
- ment must be based upon an expert evaluation of the nutritional
- value of the endorsed beverage. Furthermore, unlike Example 4,
- the use of the words "selected" and "official" in this endorse-
- ment imply that it was given only after direct comparisons had
- been performed among competing brands. Hence, the advertisement
- would be deceptive unless the association has in fact performed
- such comparisons between the endorsed brand and its leading
- competitors in terms of nutritional criteria, and the results of
- such comparisons conform to the net impression created by the
- advertisement.
-
- [Guide 3]
-
- [40 FR 22128, May 21, 1975]
-
- 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
- which vary from individual to individual. Therefore an organiza-
- tion's 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 of this part
- (Expert endorsements), it must utilize an expert or experts
- recognized as such by the organization or standards previously
- adopted by the organization and suitable for judging the relevant
- merits of such products.
-
- Example: A mattress seller advertises that its product is
- endorsed by a chiropractic association. Since the association
- would be regarded as expert with respect to judging mattresses,
- its endorsement must be supported by an expert 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 particular attributes of the advertised
- mattress in mind (See also 255.3, Example 5.)
-
- [Guide 4]
-
- [40 FR 22128, May 21, 1975]
-
- 255.5 Disclosure of material connections.
-
- When there exists a connection between the endorser and the
- seller of the advertised product which might materially affect he
- weight or credibility of the endorsement (i.e., the connection is
- not reasonably expected by the audience) such connection must be
- fully disclosed. An example of a connection that is ordinarily
- expected by viewers and need not be disclosed the payment or
- promise of payment to an endorser who is an expert or well known
- personality, as long as the advertiser does not represent that
- the endorsement was given without compensation. However, when
- the endorser is neither represented in the advertisement as an
- expert nor is known to a significant portion of the viewing
- public, then the advertiser should clearly and conspicuously
- disclose either the payment or promise of compensation prior to
- and in exchange for the endorsement or the fact that the endorser
- knew or had reasons to know or to believe that if the endorsement
- favors the advertised product some benefit, such as an appearance
- on TV, would be extended to the endorser.
-
- Example 1: A drug company commissions research on its
- product by a well-known research organization. The drug company
- pays a substantial share of the expenses of the research project,
- but the test design is under the control of the research organi-
- zation. A subsequent advertisement by the drug company mentions
- the research results as the "findings" of the well-known research
- organization. The advertiser's payment of expenses to the
- research organization need not be disclosed in this advertise-
- ment. Application of the standards set by Guide 3 and 4 provides
- sufficient assurance that the advertiser's payment will not
- affect the weight or credibility of the endorsement.
-
- Example 2: A film star endorses a particular food product.
- The endorsement regards only points of taste and individual
- preference. This endorsement must of course comply with 255.1;
- but even though the compensation paid the endorser is substan-
- tial, neither the fact nor the amount of compensation need be
- revealed.
-
- Example 3: An actual patron of a restaurant, who is neither
- known to the public nor presented as an expert, is shown seated
- at the counter. He is asked for his "spontaneous" opinion of a
- new food product served in the restaurant. Assume, first, that
- the advertiser had posted a sign on the door of the restaurant
- informing all who entered that day that patrons would be inter-
- viewed by the advertiser as part of its TV promotion of its new
- soy protein "steak". This notification would materially affect
- the weight or credibility of the patron's endorsement, and,
- therefore, viewers of the advertisement should be clearly and
- conspicuously informed of the circumstances under which the
- endorsement was obtained.
-
- Assume, in the alternative, that the advertiser had not
- posted a sign on the door of the restaurant, but had informed all
- interviewed customers of the "hidden camera" only after inter-
- views were completed and the customers had no reason to know or
- believe that their response was being recorded for use in an
- advertisement. Even if patrons were also told that they would be
- paid for allowing the use of their opinions in advertising, these
- facts need not be disclosed.