March 12th, 2009
'Results May Vary' Won't Be Enough Under New FTC Rules
By Ira Teinowitz
Proposed Changes Could Put Squeeze on Ads for Diet Plans and Fitness Equipment
"Results not typical” or “Experience may vary” used to be enough to protect marketers using testimonial ads to move their wares. But maybe not for much longer.
The Federal Trade Commission wants to toughen the rules for endorsements and testimonials by requiring evidence that results are likely to be typical—a move that would put pressure on purveyors of diet pills and exercise equipment, among others.
The FTC is proposing the change as part of a rewrite of its now-29-year-old guide for endorsements. In part, it’s an attempt to bring the rules up to date in order to meet some of the challenges of the internet and buzz-marketing age.
The biggest change: Advertisers that feature endorsers touting dramatic results will either have to demonstrate that consumers are “likely” to have similar success or describe in the ad what the “generally expected performance” is.
“The commission believes that certain advertisements employing testimonials may not convey that the endorsers’ experience is representative of what consumers will generally achieve,” the FTC said.
Supporting endorsers’ claims
The proposal says advertisers have to have “adequate substantiation” to support endorsers’ claims and, when they know those results may not be typical, disclose “clearly and conspicuously” what typical results are.
The proposal would also require celebrities who mention products in TV interviews to disclose any connections they have to the manufacturers of those products. And bloggers who get free products and endorse them on their websites would have to make it clear they obtained the products for free.
The proposed changes are running into opposition from advertising groups and some marketers.
In comments filed with the FTC, the groups dispute the FTC’s argument that the public may not fully understand the current disclaimers. The advertisers and marketers call the FTC’s proposal a potential “hardship” that exceeds allowable restrictions under the First Amendment and also asks for information that can be next to impossible to obtain in some cases.
“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,” said one set of comments filed by the American Association of Advertising Agencies, the American Advertising Federation, the U.S. Chamber of Commerce and six other groups. “Marketers who want to use clearly accurate and documented testimonials from successful customers may not be able to do so if they are required to disclose the generally accepted results achieved by consumers.”
‘Substantial burden on advertisers’
In a separate set of comments, the AAF and 4A’s warned that the FTC’s proposal would “impose a substantial burden on advertisers by making them responsible for determining how testimonials will be interpreted by consumers.”
The Direct Marketing Association warned that the change could make it difficult for new competitors to advertise at all, and the Electronic Retailing Association and the Council for Responsible Nutrition said the change could make even well-documented claims difficult to make.
Several associations suggested the FTC hold off on issuing the part of the guidelines that applies to new media until it has more experience with problems.