SHARE

August 04, 2022

FTC Proposes Substantive Revisions to Advertising Guidelines

You've Reached Your
Free Article Limit This Month
Register for free to get unlimited access to all Law.com OnPractice content.
Register Now

Key Takeaways

  • Many of the proposed changes are simply clarifications or changes to illustrative examples.

The Federal Trade Commission ("FTC") is seeking public comment on proposed changes to its guides concerning the use of endorsements and testimonials in advertising.  FTC guides are advisory in nature and intended to assist businesses in complying with laws administered by the FTC. 

Endorsements and advertisements are defined broadly to mean any advertising message that a consumer is likely to believe reflects the opinions, beliefs, findings, or experiences of a third-party.  16 CFR § 255.0.  Currently, FTC guides provide that endorsements must reflect the honest opinions, findings, beliefs, or experiences of the endorser.  16 CFR § 255.1.  Endorsements may not contain any representations that would be deceptive or that could not be substantiated.  Id.  If the endorser's experience is not generally representative, the advertisement should clearly and conspicuously disclose what the generally expected performance should be.  16 CFR 255.2.  And when there is a connection between the endorser and the advertiser, that connection must be fully disclosed.  16 CFR 255.5.

Many of the proposed changes are simply clarifications or changes to illustrative examples.  Other changes establish principles not previously present in the guidelines.  The FTC has proposed the following noteworthy changes to its guides:

  • revise the definition of endorsement to include marketing and promotional messages. Tags on social media may also be considered endorsements under the proposed guidelines;
  • change the definition of "product" to include "brand;"
  • clarify that a "clear and conspicuous" disclosure means a disclosure that "is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers;"
  • add that endorsements in advertisements addressed to children may be of special concern because of the character of the audience.  Practices that would not ordinarily be questioned in advertisements to adults might be questioned in advertisements directed at children;
  • note that when a claim in an advertisement is visual, required disclosures should be at least visual. When the claim is audible, the disclosures should be at least audible;
  • explain that endorsers and not just advertisers may be liable for their statements such as when they make representations they know or should know to be deceptive;
  • provide that using the likeness of a person that is not the actual endorser is deceptive if it misrepresents a material attribute; and
  • clarify that disclosures of the connection between advertisers and endorsers must be "clear and conspicuous;"

Comments regarding the proposed amendments must be received on or before September 26, 2022. Comments captioned "Endorsement Guides P204500" may be submitted at https://www.regulations.gov.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

More From Ballard Spahr

New York Restricts Automated Decision Making in Employment

By Timothy Dickens Ballard Spahr August 29 , 2022

Businesses operating in New York City should be aware of a local law addressing the use of automated employment screening and decision-making tools coming into effect on January 1, 2023.

Status Update: Federal Contractor Vaccine Mandate Injunction Narrowed

By Lila A. Sevener Ballard Spahr August 29 , 2022

On August 26, 2022, the United States Court of Appeals for the Eleventh Circuit narrowed the nationwide injunction of Executive Order 14042, which requires federal contractors and employees who work on or in connection with a covered federal contract, or share a workplace with another employee who works on or in connection with such contracts, to be fully vaccinated against COVID-19.

Unions Cannot Force OSHA to Issue Permanent COVID Standard

By Shannon D. Farmer Ballard Spahr August 26 , 2022

On August 26, 2022, the U.S. Court of Appeals for the District of Columbia Circuit turned back efforts by a group of unions seeking to force the Occupational Safety and Health Administration (OSHA) to quickly issue a permanent rule establishing protections for healthcare workers from COVID-19.

More From Consumer Protection

Remote Monitoring Services Under Review: Medicare Coverage Policies May Be Coming

By Deborah R. Godes McDermott Will & Emery January 26 , 2023

Six of the seven Medicare Administrative Contractors (MACs) are scheduled to jointly host a multijurisdictional contractor advisory committee (CAC) meeting on February 28, 2023.

CFPB Says 'Show Me The (Consumer Unfriendly) Fine Print'

By Timothy A. Butler Greenberg Traurig January 25 , 2023

On Jan. 11, the Consumer Financial Protection Bureau (CFPB) released a proposed rule that would require certain nonbank financial companies subject to its supervisory jurisdiction to submit annual reports about their use of terms and conditions that attempt to waive or limit consumer rights and protections.

Trending in Telehealth: January 17 - 23, 2023

By Dale C. Van Demark McDermott Will & Emery January 24 , 2023

Trending in Telehealth is a new weekly series from the McDermott Digital Health team where we highlight state legislative and regulatory developments that impact the healthcare providers, telehealth and digital health companies, pharmacists, and technology companies that deliver and facilitate the delivery of virtual care.

Featured Stories
Closeclose
Search
Menu

Working...