In October the FTC published in the Federal Register new guidelines for the use of testimonials and endorsements in advertising. These guidelines were revised, and on December 1 the FTC adopted them. The guidelines have sweeping implications on internet advertising, including blogs, where testimonials have become a cheap and prominent method of advertising. Among the new guidelines that advertisers and endorsers must follow include the following:
- Endorser testimonials must be honest and based on experience, opinion, or belief.
- Endorsements may not be presented out of context so as to distort the endorser’s actual opinion or experience with the product.
- When an advertisement represents that an endorser uses a product, the endorser must have actually used it at the time of the advertisement. When the endorser ceases to use the product, the advertisement must also cease to run.
- A material connection between the advertiser and the endorser must be disclosed.
Among the examples given in the guidelines as actionable is an instance where a well-known blogger is given a product to review by a company. The company pays the blogger to try and review the product. The blogger tries the product, and then writes a favorable review which makes false claims about the product and its capabilities. In such a case, under the new guidelines the advertiser will be charged with a duty to monitor the blog posts and will be liable for those unsubstantiated false representations. The blogger will also be subject to liability for the unsubstantiated false representations. Finally, the blogger will be liable if he does not clearly disclose that he has accepted payment from the advertiser for his services.