On notice: continued use of endorsements | Proskauer – Advertising law


Continuing our series on FTC Notice Regarding Criminal Offenses Regarding Endorsements, this article considers the FTC’s statement that it is illegal under Section 5 of the FTC Act “For an advertiser to continue to advertise an endorsement, unless the advertiser has good reason to believe that it continues to subscribe to the views presented in the endorsement.”

In support, the FTC cited Nat’l Dynamics Corp., 82 FTC 488 (1973), a nearly 40-year-old case in which the FTC found that by posting undated testimonial letters written 5 to 10 years ago, the advertiser “created the impression, contrary to the facts, that he were recent statements from people simultaneously using [the advertiser’s product] and that the statements represented the contemporary views of the authors. The FTC rejected the advertiser’s defense that it was not told that endorsers were no longer using the product and did not approve it until relatively recently, believing it to be ” advertiser’s duty to ensure that the testimonials they publish reflect the facts and opinions existing at the time of publication and broadcast. The FTC thus ordered the advertiser to cease and desist from using, posting or referring to any testimony or endorsement unless it has “good reason to believe that at the time of such use, publication or reference, the named person or organization subscribes to the facts and opinions contained therein.

The language of the recent FTC notice mirrors that of the endorsement guides, which state: “An advertiser may only use an expert or celebrity endorsement as long as they have good reason to believe that the endorser continues to agree with the views presented. “16 CFR § 255.1 (b). However, the notice appears to go further in applying this requirement to all approval, not just from experts or celebrities.

Endorsement guides state that advertisers can meet this requirement by “securing endorser opinions at reasonable intervals”. 16 CFR § 255.1 (b). Reasonableness in this context is determined by factors such as:

  • New information on the performance or effectiveness of the product,
  • Material alteration of the product,
  • Changes in the performance of competing products, and
  • The advertiser’s contractual commitments.

Identifier. For example, if a building contractor states that they are using the advertiser’s paint because of its quick-drying properties and durability, but the advertiser subsequently reformulates their paint, the advertiser should contact the advertiser. ‘Contractor to determine if they will continue to subscribe to the views presented above before continuing to use that Entrepreneur’s endorsement. See 16 CFR § 255.1, example 1.

NAD has applied this principle to advertisers touting the ratings and reviews of independent third-party organizations. For example, in American Dental Supply, LLC (White Brilliance Teeth Whitening System), NAD Case # 4183 (May 2004), Good Housekeeping Magazine disputed the advertiser’s use of the claim “Good Housekeeping Magazine – ‘Best Results Overall'”. Four years earlier, in 2000, Good Housekeeping had actually evaluated the advertiser’s product with other teeth whitening products and concluded that the advertiser’s product offered the “best results overall.” However, in raising this challenge, Good Housekeeping made it clear that it no longer agrees with its assessment which was conducted in 2000. Citing approval guides and the fact that the market for teeth whitening products has changed significantly since then. Then, and the instructions for use on the product had also changed in the meantime, NAD recommended that the advertiser end this claim attributed to Good Housekeeping.

Advertisers who use or reference recommendations and testimonials from individuals or third-party organizations, whether affiliated with the advertiser or independent, should periodically contact their sponsors to ensure that they continue to subscribe to the advertisers. advertised views. In particular, they should do so whenever there is a material change in the advertised product or, where the approval is for competing products, when there is a change in those competing products or in the competitive market.

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