In a previous blog, we discussed the Federal Trade Commission’s (“FTC”) proposed changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”). The Endorsement Guides are intended to help businesses ensure that their endorsement and testimonial advertising conforms with Section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce,” including false advertising. We specifically highlighted the FTC’s proposed changes related to social media platforms and their users, deceptive endorsements by online “influencers,” businesses’ use of consumer reviews, and the impact of advertising on children. Now, approximately one year later, and after receiving and considering public comments on its proposed changes, the FTC has issued its final rule adopting revisions to the Endorsement Guides. See Guides Concerning the Use of Endorsements and Testimonials in Advertising, 88 Fed. Reg. 48092 (July 26, 2023) (to be codified at 16 C.F.R. pt. 255). In issuing its final revised Endorsement Guides, the FTC stated that the changes are intended to “reflect the ways advertisers now reach consumers to promote products and services, including through social media and reviews.” We summarize below the FTC’s final revisions to the same sections of the Endorsement Guides covered in our earlier blog.
Revised Definition of “Endorsement”
The FTC proposed changing the Endorsement Guide’s definition of “endorsement” to make clear that social media user tags and other similar types of communications might constitute “endorsements.” The new definition of “endorsement” is as follows:
For purposes of this part, an “endorsement” means any advertising, marketing, or promotional message for a product that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. Verbal statements, tags in social media posts, demonstrations, depictions of the name, signature, likeness or other identifying personal characteristics of an individual, and the name or seal of an organization can be endorsements. The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the “endorser” and could be or appear to be an individual, group, or institution.
88 Fed. Reg. 48092, 48103.
The FTC’s final rule clarifies that fake positive reviews are considered “endorsements,” and that procuring a fake positive review to endorse a product is deceptive “because it was not written by a bona fide user of the product … and because it does not reflect the honest opinions, findings, beliefs, or experience of the endorser.” Id. at 48093, 48104, 48108. While fake negative reviews about a competitor are not “endorsements,” they may still be deceptive and therefore in violation of Section 5 of the FTC Act. Id. at 48104.
The FTC also clarified that “[a]lthough the use of fake [social media] followers may be inherently ‘misleading’ as that term is colloquially used, the Commission’s jurisdiction is limited to commercial speech and does not reach the use of fake followers for vanity or other non-commercial purposes.” Id. at 48095. In addition, the final rule indicates that if an influencer receives a valuable, unsolicited product and is asked (but not required) to endorse it, any resulting posts by the influencer would be endorsements, “even though the influencer could have chosen not to endorse the product.” Id. at 48094.
Material Connections and Consumer Reviews
The revised Endorsement Guides require certain disclosures of a material connection between an endorser (including an online influencer) and an advertiser. A connection is “material” if it “affect[s] the weight or credibility the audience gives an endorsement.” Id. at 48099. The changes proposed last year would have required disclosure of such connections unless the connection was “understood or expected by all but an insignificant portion of the audience.” In its final changes, the FTC further revised the disclosure requirement to say that a “material connection needs to be disclosed when a significant minority of the audience for an endorsement does not understand or expect the connection.” Id. at 48099-48100. The corollary is that “[i]f the audience does reasonably expect a connection, then it is not deceived by the lack of disclosure.” Id. at 48100 (emphasis in original). The FTC provides the example that “if a film star endorses a particular food product in a television commercial, a disclosure is unnecessary because it is ordinarily expected that celebrities are paid for such appearances.” Id.
The revised Endorsement Guides now include a definition of the term “clear and conspicuous,” which the FTC states is a “characteristic[] necessary” to make a disclosure effective. Id. at 48093. Under this new definition, a disclosure must be “difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.” Id. at 48103.Notably, under the new definition, where the disclosure is in an “interactive electronic medium,” such as “social media or the internet,” it must be “unavoidable.” Id. In an example, the revised Endorsement Guides provide that a disclosure would not be “unavoidable” if consumers are required to click a link titled “more” to view the disclosure. Id. at 48104.
Another important change to the Endorsement Guides addresses consumer reviews. Last year, the FTC proposed including language indicating that advertisers may not distort or misrepresent what consumers actually think about their products “in procuring, suppressing, boosting, organizing, or editing consumer reviews of their products.” Id. at 48097. The final changes also include in this list of activities “publishing, upvoting, downvoting, and reporting.” Id. The FTC defines upvoting or downvoting a review as “casting a vote in support of or in disapproval of it by clicking on an arrow or other icon, usually affecting the review’s rank or position on a website or platform.”
Advertising to Children
The FTC’s final changes to its Endorsement Guides conclude with a new, short section related to advertising directed to children:
Endorsements in advertisements directed to children may be of special concern because of the character of the audience. Practices that would not ordinarily be questioned in advertisements addressed to adults might be questioned in such cases.
Id. at 48112.
No specific examples are provided in the FTC’s final rule. However, the FTC stated that it “recently held an event to learn more about advertising to children in digital media, including endorsements directed to children, and is exploring next steps.” Id. at 48102.
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The final revisions to the Endorsement Guides reflect the FTC’s effort to consider current and popular means of advertising, including through social media posts and endorsements, in the agency’s approach to interpreting and applying Section 5 of the FTC Act. Those who disseminate and monetize endorsements should review their policies and practices and consult with experienced counsel to ensure that they are in compliance with the FTC’s final rule.
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