Advertisers Defend Their Right to Lie

By Mike Schuster Mar 25, 2009 10:00 am

But FTC says testimonials, endorsements must be backed up with --gasp! -- hard evidence.

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Those who sell diet pills and ab-rollers may soon have to do better than "results not typical": The Federal Trade Commission (FTC) is reviewing a 29-year-old guide for endorsement claims, and is considering a stricter set of rules for customer testimonials.

The current rules allow marketers to enlist spokespeople who have reaped fantastic rewards from their products to speak on behalf of all customers. However, new measures would require the ads to also feature evidence showing that the proposed results are, in fact, typical. Failing that, the ad must describe what the "generally expected performance" is.
These guidelines are reportedly under final review, and are widely expected to be implemented.

Richard Cleland -- assistant director of the FTC's advertising practices division -- told the Chicago Tribune: "For a good part of the last decade, we've noticed a problem, particularly with consumer testimonials. The use of consumer testimonials had become almost a safe harbor for companies as long as they threw in some sort of disclaimer about results not being typical."

So much for Subway's Jared Fogle.

The overhaul will also include provisions for celebrity and medical spokespeople.

Any celebrity who lends their name to a product within an interview or advertisement will have to disclose any connection they have to the manufacturer (a move sure to be unpopular with brands from Nike (NKE) to Gatorade (PEP)). Furthermore, bloggers who endorse a product they received free of charge will have to disclse that fact.

Professional or medical spokespeople will have to prove experience in the product area they're endorsing - no more actors in lab coats holding a clipboard (potentially a problem for makers of over-the-counter drugs like Tylenol (JNJ) and Advil (WYE)). Limits of expertise must also be mentioned: If a doctor approves of Head-On but only works in podiatry, he'll have to disclose that little tidbit.

Naturally, advertisers are up in arms over the proposed changes. Several groups have filed complaints to the FTC alleging that the new provisions require information that can be impossible to prove in some cases - i.e., those cases that necessitate lying.

According to Advertising Age, one comment reads: "Determining 'generally accepted results' for an aerobic exercise device or regimen can be very difficult for advertisers [to show] because the extent of those benefits will vary widely."

Another indicates that the proposal will "impose a substantial burden on advertisers by making them responsible for determining how testimonials will be interpreted by consumers."

Wait... Isn't that their job?Twitter: @mcs212