We have distributed a Hogan & Hartson Privacy Update on the FTC’s October 5 revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, the first modifications to these key advertising guidelines since 1980. While the Guides are advisory in nature, they reflect situations in which the FTC may exercise its prosecutorial discretion to enforce Section 5 of the FTC Act, which prohibits unfair and deceptive trade practices.
Key among the revisions is the guideline that bloggers and other Internet users who are compensated to endorse products must disclose this connection in their endorsement, and both the blogger and advertiser are responsible that factual claims about the product made by the blogger are substantiated. Another key provision states that advertisers, when using an endorser whose experience does not reflect generally expected results when using the product, should issue a clear disclaimer communicating the generally expected results, departing from earlier enforcement policy that allowed advertisers to simply display a disclaimer stating that the endorser’s results were not typical. The FTC also added many examples to guide advertisers in their use of endorsers.
The update can be accessed here.