On Notice: Unsubstantiated Or Unrepresentative Testimonials

• Published date: 13 January 2022
• Subject Matter: Media, Telecoms, IT, Entertainment, Advertising, Marketing & Branding, Social Media
• Law Firm: Proskauer Rose LLP
• Author: Mr Baldassare Vinti, Jennifer Yang and Amy Gordon

Continuing our "On Notice" series about the FTC's Notice of Penalty Offenses Concerning Endorsements, we address the FTC's prohibition against using testimonials to (1) make or imply unsubstantiated or otherwise deceptive performance claims even if such testimonials genuinely reflect the endorser's own experience, and (2) misrepresent explicitly or implicitly that the experience described by endorsers of a product or service "represents the typical or ordinary experience of users."

The FTC cited several prior decisions in support of its Notice, including:

• Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984). The advertiser used testimonials to make performance claims for a device that supposedly improved fuel economy for automobiles. The testimonials included statements by users about their fuel saving experiences. The FTC found that by printing the testimonials the advertiser "implicitly made performance claims" that the Commission had found to be false and deceptive. Therefore, "irrespective of the veracity of the individual consumer testimonials," the testimonials themselves were deceptive.
• Macmillan, Inc., 96 F.T.C. 208 (1980). The advertiser, LaSalle University, relied on endorsements by successful graduates in its ads. The FTC noted that "[t]hese testimonials created the impression that such success was ordinary and typical of LaSalle graduates." Because the typical graduate did not experience the type of success represented in the testimonials, the FTC required the advertiser provide a disclaimer stating that "this testimonial does not reflect the typical or ordinary experience of [the student]" and required it be displayed "in print as large as that of the testimonial itself, adjacent to or integrated with the testimonial."
• Porter & Dietsch, Inc., 90 F.T.C. 770 (1977), aff'd, 605 F.2d 294 (7th Cir. 1979) An advertiser of weight loss tablets touted testimonials "reciting great weight losses achieved by users." However, the advertiser could not substantiate that the results represented the ordinary experience of people using the tablets The Commission therefore prohibited the advertiser from "[u]sing any testimonial...which reports a result unless the testimonial or a related disclosure in close conjunction therewith reveals clearly and conspicuously the typical or ordinary experience of members of the public with such product."

The FTC's Endorsement Guides echo those decisions and the recent Notice letter, stating that: "the advertiser must possess...