The FTC Proposes Updates to its Endorsement GuidesJune 17, 2022
Last month, the FTC announced and posted a prepublication of its proposed changes to its guides concerning the use of endorsements in advertising (Endorsement Guides).
The Endorsement Guides date back several decades. Since the publication of the original Endorsement Guides in 1975, FTC has made several amendments to address modern developments, such as internet advertising and social media. The most recent version of Endorsement Guides dates from 2009.
In 2020, as part of its regulatory review process, the FTC issued a notice for comments regarding the Endorsement Guides. It posed 22 specific questions and received more than 100 comments in response.
The proposed rule, to be published in the Federal Register, is based on these comments.
Among other things, the proposed revisions include an expanded definition of endorser (to include fabricated endorser), a new definition of “clear and conspicuous disclosure” (tightening the standard), and clarification that endorsers and intermediaries, such as advertising agencies, may be liable for misleading or unsupported representations.
Disclosures are an important aspect of endorsements. Disclosures must be clear and conspicuous. FTC recognizes that in deciding whether the disclosure is clear and conspicuous, it is important to consider the target audience. Notably, FTC discusses various comments regarding disclosures in advertising to children and whether such disclosures would be effective. Before proposing guidance regarding advertising disclosures for this target group, several factors need to be considered, including the relevance of age and the type of advertising media. FTC has planned a public workshop on October 19, 2022 to discuss issues related to disclosures in advertising to children.
Comments on the proposed revision can be submitted until 60 days after the publication of the proposal in the Federal Register. Anyone involved in advertising using endorsements, testimonials and reviews would be well-advised to review the proposal and consider the potential consequences.