Guides Concerning Use Of Endorsement And Testimonials In Advertising
16 CFR Part 255 · Guides · in the Code of Federal Regulations 1990-1990 (1 annual editions)
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Latest edition: Library of Congress, 1990 CFR · Earliest edition: 1990 CFR
Text (1990 edition, OCR)
Federal Trade Commission
the student for achieving satisfactory
progress, including class attendance if
applicable.
(b) If the member recommends, sug-
gests, or requires that the student
have or secure any additional texts,
equipment, or materials other than
usual student supplies such as paper
and pencils, or utilize any supplemen-
tary services offered by the member,
and the cost thereof is not included in
the contract price of the course, an
itemized list of such items and services
showing the price thereof.
(c) In the case of courses to be
taught in residence, a description of
the school’s physical facilities, and
equipment to be used in teaching the
class, and the usual class size.
(d) If the member represents that it
offers a placement service to its gradu-
ates or will otherwise secure or assist
them to find employment, a detailed
and explicit description of the extent
and nature of this service or assist-
ance.
(e) Any other material facts concern-
ing the school and the program of in-
struction or course which are reason-
ably likely to affect the decision of the
student to enroll therein. [Guide 10]
PART 255--GUIDES CONCERNING
USE OF ENDORSEMENTS AND TES-
TIMONIALS IN ADVERTISING
Sec.
255.0
255.1
255.2
255.3
Definitions.
General considerations.
Consumer endorsements.
Expert endorsements.
255.4 Endorsements by organizations.
255.5 Disclosure of material connections.
AutHority: 38 Stat. 717, as amended; 15
U.S.C. 41-58.
§ 255.0 Definitions.
(a) The Commission intends to treat
endorsements and testimonials identi-
cally in the context of its enforcement
of the Federal Trade Commission Act
and for purposes of this part. The
term “endorsements” is therefore gen-
erally used hereinafter to cover both
terms and situations.
(b) For purposes of this part, an “‘en-
dorsement” means any advertising
message (including verbal statements,
§ 255.0
demonstrations, or depictions of the
name, signature, likeness or other
identifying personal characteristics of
an individual or the name or seal of an
organization) which message consum-
ers are likely to believe reflects the
opinions, beliefs, findings, or experi-
ence of a party other than the spon-
soring advertiser. The party whose
opinions, beliefs, findings, or experi-
ence the message appears to reflect
will be called the endorser and may be
an individual, group or institution.
(c) For purposes of this part, the
term “product” includes any product,
service, company or industry.
(d) For purposes of this part, an
“expert” is an individual, group or in-
stitution possessing, as a result of ex-
perience, study or training, knowledge
of a particular subject, which knowl-
edge is superior to that generally ac-
quired by ordinary individuals.
Example 1: A film critic’s review of a
movie is excerpted in an advertisement.
When so used, the review meets the defini-
tion of an endorsement since it is viewed by
readers as a statement of the critic’s own
opinions and not those of the film producer,
distributor or exhibitor. Therefore, any al-
teration in or quotation from the text of the
review which does not fairly reflect its sub-
stance would be a violation of the standards
set by this part.
Example 2: A TV commercial depicts two
women in a supermarket buying a laundry
detergent. The women are not identified
outside the context of the advertisement.
One comments to the other how clean her
brand makes her family’s clothes, and the
other then comments that she will try it be-
cause she has not been fully satisfied with
her own brand. This obvious fictional dram-
atization of a real life situation would not be
an endorsement.
Example 3: In an advertisement for a pain
remedy, an announcer who is not familiar to
consumers except as a spokesman for the
advertising drug company praises the drug’s
ability to deliver fast and lasting pain relief.
He purports to speak, not on the basis of his
own opinions, but rather in the place of and
on behalf of the drug company. Such an ad-
vertisement would not be an endorsement.
Example 4: A manufacturer of automobile
tires hires a well known professional auto-
mobile racing driver to deliver its advertis-
ing message in television commercials. In
these commercials, the driver speaks of the
smooth ride, strength, and long life of the
tires. Even though the message is not ex-
pressly declared to be the personal opinion
109
§ 255.1
of the driver, it may nevertheless constitute
an endorsement of the tires. Many consum-
ers will recognize this individual as being
primarily a racing driver and not merely a
spokesman or announcer for the advertiser.
Accordingly, they may well believe the
driver would not speak for an automotive
product unless he/she actually believed in
what he/she was saying and had personal
knowledge sufficient to form that belief.
Hence they would think that the advertis-
ing message reflects the driver's personal
views as well as those of the sponsoring ad-
vertiser. This attribution of the underlying
views to the driver brings the advertisement
within the definition of an endorsement for
purposes of this part.
Example 5: A television advertisement for
golf balls shows a prominent and well-recog-
nized professional golfer hitting the golf
balls. This would be an endorsement by the
golfer even though he makes no verbal
statement in the advertisement.
(40 FR 22128, May 21, 1975, as amended at
45 FR 3872, Jan. 18, 1980]
§ 255.1 General considerations.
(a) Endorsements must always re-
flect the honest opinions, findings, be-
liefs, or experience of the endorser.
Furthermore, they may not contain
any representations which would be
deceptive, or could not be substantiat-
ed if made directly by the advertiser.
[See Example 2 to Guide 3 (§ 255.3) il-
lustrating that a valid endorsement
may constitute all or part of an adver-
tiser’s substantiation.]
(b) The endorsement message need
not be phrased in the exact words of
the endorser, unless the advertisement
affirmatively so represents. However,
the endorsement may neither be pre-
sented out of context nor reworded so
as to distort in any way the endorser’s
opinion or experience with the prod-
uct. An advertiser may use an endorse-
ment of an expert or celebrity only as
long as it has good reason to believe
that the endorser continues to sub-
scribe to the views presented. An ad-
vertiser may satisfy this obligation by
securing the endorser’s views at rea-
sonable intervals where reasonable-
ness will be determined by such fac-
tors as new information on the per-
formance or effectiveness of the prod-
uct, a material alteration in the prod-
uct, changes in the performance of
competitors’ products, and the adver-
tiser’s contract commitments.
16 CFR Ch. I (1-1-90 Edition)
(c) In particular, where the adver-
tisement represents that the endorser
uses the endorsed product, then the
endorser must have been a bona fide
user of it at the time the endorsement
was given, Additionally, the advertiser
may continue to run the advertise-
ment only so long as he has good
reason to believe that the endorser re-
mains a bona fide user of the product.
[See § 255.1(b) regarding the “good
reason to believe” requirement.)
Guide 1, Example 1: A building contractor
states in an advertisement that he specifies
the advertiser’s exterior house paint be-
cause of its remarkable quick drying proper-
ties and its durability. This endorsement
must comply with the pertinent require-
ments of Guide 3. Subsequently, the adver-
tiser reformulates its paint to enable it to
cover exterior surfaces with only one coat.
Prior to continued use of the contractor's
endorsement, the advertiser must contact
the contractor in order to determine wheth-
er the contractor would continue to specify
the paint and to subscribe to the views pre-
sented previously.
Example 2: A television advertisment por-
trays a woman seated at a desk on which
rest five unmarked electric typewriters. An
announcer says ‘We asked Mrs. X, an exec-
utive secretary for over ten years, to try
these five unmarked typewriters and tell us
which one she liked best.”
The advertisement portrays the secretary
typing on each machine, and then picking
the advertiser's brand, The announcer asks
her why, and Mrs. X gives her reasons. As-
suming that consumers would perceive this
presentation as a “blind” test, this endorse-
ment would probably not represent that
Mrs. X actually uses the advertiser’s ma-
chines in her work. In addition, the endorse-
ment may also be required to meet the
standards of Guide 3 on Expert Endorse-
ments.
(Guide 1]
[45 FR 3872, Jan. 18, 1980]
§ 255.2 Consumer endorsements,
(a) An advertisement employing an
endorsement reflecting the experience
of an individual or a group of consum-
ers on a central or key attribute of the
product or service will be interpreted
as representing that the endorser’s ex-
perience is representative of what con-
sumers will generally achieve with the
advertised product in actual, albeit
variable, conditions of use. Therefore,
unless the advertiser possesses and
110
Federal Trade Commission
relies upon adequate substantiation
for this representation, the advertise-
ment should either clearly and con-
spicuously disclose what the generally
expected performance would be in the
depicted circumstances or clearly and
conspicuously disclose the limited ap-
plicability of the endorser’s experience
to what consumers may generally
expect to achieve. The Commission’s
position regarding the acceptance of
disclaimers or disclosures is described
in the preamble to these Guides pub-
lished in the FeperaL REGISTER on Jan-
uary 18, 1980.
(b) Advertisements presenting en-
dorsements by what are represented,
directly or by implication, to be
“actual consumers” should utilize
actual consumers, in both the audio
and video or clearly and conspicuously
disclose that the persons in such ad-
vertisements are not actual consumers
of the advertised product.
(c) Claims concerning the efficacy of
any drug or device as defined in the
Federal Trade Commission Act, 15
U.S.C. 55, shall not be made in lay en-
dorsements unless (1) the advertiser
has adequate scientific substantiation
for such claims and (2) the claims are
not inconsistent with any determina-
tion that has been made by the Food
and Drug Administration with respect
to the drug or device that is the sub-
ject of the claim.
Guide 2, Example I: An advertisement
presents the endorsement of an owner of
one of the advertiser’s television sets. The
consumer states that she has needed to take
the set to the shop for repairs only one time
during her 2-year period of ownership and
the costs of servicing the set to date have
been under $10.00. Unless the advertiser
possesses and relied upon adequate substan-
tiation for the implied claim that such per-
formance reflects that which a significant
proportion of consumers would be likely to
experience, the advertiser should include a
disclosure that either states clearly and con-
spicuously what the generally expectable
performance would be or clearly and con-
spicuously informs consumers that the per-
formance experienced by the endorser is not
what they should expect to experience. The
mere disclosure that “not all consumers will
get this result” is insufficient because it can
imply that while all consumers cannot
expect the advertised results, a substantial
number can expect them. [See the cross ref-
erence in Guide 2(a) regarding the accept-
ability of disclaimers or disclosures.]
§ 255.3
Example 2: An advertiser presents the re-
sults of a poll of consumers who have used
the advertiser’s cake mixes as well as their
own recipes. The results purport to show
that the majority believed that their fami-
lies could not tell the difference between
the advertised mix and their own cakes
baked from scratch. Many of the consumers
are actually pictured in the advertisement
along with relevant, quoted portions of
their statements endorsing the product.
This use of the results of a poll or survey of
consumers probably represents a promise to
consumers that this is the typical result
that ordinary consumers can expect from
the advertiser's cake mix.
Example 3: An advertisement purports to
portray a “hidden camera” situation in a
crowded cafeteria at breakfast time. A
spokesperson for the advertiser asks a series
of actual patrons of the cafeteria for their
spontaneous, honest opinions of the adver-
tiser’s recently introduced breakfast cereal.
Even though the words “hidden camera”
are not displayed on the screen, and even
though none of the actual patrons is specifi-
cally identified during the advertisement,
the net impression conveyed to consumers
may well be that these are actual customers,
and not actors. If actors have been em-
ployed, this fact should be disclosed.
{Guide 2]
[45 FR 3872, Jan. 18, 1980)
§ 255.3 Expert endorsements.
(a) Whenever an advertisement rep-
resents, directly or by implication,
that the endorser is an expert with re-
spect to the endorsement message,
then the endorser’s qualifications
must in fact give him the expertise
that he is represented as possessing
with respect to the endorsement.
(b) While the expert may, in endors-
ing a product, take into account fac-
tors not within his expertise (e.g., mat-
ters of taste or price), his endorsement
must be supported by an actual exer-
cise of his expertise in evaluating
product features or characteristics
with respect to which he is expert and
which are both relevant to an ordinary
consumer’s use of or experience with
the product and also are available to
the ordinary consumer. This evalua-
tion must have included an examina-
tion or testing of the product at least
as extensive as someone with the same
degree of expertise would normally
need to conduct in order to support
the conclusions presented in the en-
dorsement. Where, and to the extent
111
§ 255.4
that, the advertisement implies that
the endorsement was based upon a
comparison such comparison must
have been included in his evaluation;
and as a result of such comparison, he
must have concluded that, with re-
spect to those features on which he is
expert and which are relevant and
available to an ordinary consumer, the
endorsed product is at least equal
overall to the competitors’ products.
Moreover, where the net impression
created by the endorsement is that the
advertised product is superior to other
products with respect to any such fea-
ture or features, then the expert must
in fact have found such superiority.
Example 1: An endorsement of a particu-
lar automobile by one described as an “‘engi-
neer” implies that the endorser’s profession-
al training and experience are such that he
is well acquainted with the design and per-
formance of automobiles. If the endorser’s
field is, for example, chemical engineering,
the endorsement would be deceptive.
Example 2: A manufacturer of automobile
parts advertises that its products are ap-
proved by the “American Institute of Sci-
ence.” From its very name, consumers would
infer that the “American Institute of Sci-
ence” is a bona fide independent testing or-
ganization with expertise in judging auto-
mobile parts and that, as such, it would not
approve any automobile part without first
testing its efficacy by means of valid scien-
tific methods. Even if the American Insti-
tute of Science is such a bona fide expert
testing organization, as consumers would
expect, the endorsement may nevertheless
be deceptive unless the Institute has con-
ducted valid scientific tests of the advertised
products and the test results support the
endorsement message.
Example 3: A manufacturer of a non-pre-
scription drug product represents that its
product has been selected in preference to
competing products by a large metropolitan
hospital. The hospital has selected the prod-
uct because the manufacturer, unlike its
competitors, has packaged each dose of the
product separately. This package form is
not generally available to the public. Under
the circumstances, the endorsement would
be deceptive because the basis for the choice
of the manufacturer’s product, convenience
of packaging, is neither relevant nor avail-
able to consumers.
Example 4: The president of a commercial
“home cleaning service’ states in a televi-
sion advertisement that the service uses a
particular brand of cleanser in its business.
Since the cleaning service's professional suc-
cess depends largely upon the performance
of the cleansers it uses, consumers would
16 CFR Ch. 1 (1-1-90 Edition)
expect the service to be expert with respect
to judging cleansing ability, and not be sat-
isfied using an inferior cleanser in its busi-
ness when it knows of a better one available
to it, Accordingly, the cleaning service's en-
dorsement must at least conform to those
consumer expectations. The service must, of
course, actually use the endorsed cleanser.
Additionally, on the basis of its expertise, it
must have determined that the cleansing
ability of the endorsed cleanser is at least
equal (or superior, if such is the net impres-
sion conveyed by the advertisement) to that
of competing products with which the serv-
ice has had experience and which remain
reasonably available to it. Since in this ex-
ample, the cleaning service’s president
makes no mention that the endorsed cleans-
er was “chosen,” “selected,” or otherwise
evaluated in side-by-side comparisons
against its competitors, it is sufficient if the
service has relied solely upon its accumulat-
ed experience in evaluating cleansers with-
out having to have performed side-by-side
or scientific comparisons.
Example 5: An association of professional
athletes states in an advertisement that it
has “selected” a particular brand of bever-
ages as its “official breakfast drink”. As in
Example 4, the association would be regard-
ed as expert in the field of nutrition for pur-
poses of this section, because consumers
would expect it to rely upon the selection of
nutritious foods as part of its business
needs. Consequently, the association's en-
dorsement must be based upon an expert
evaluation of the nutritional value of the
endorsed beverage. Furthermore, unlike Ex-
ample 4, the use of the words “selected” and
“official” in this endorsement imply that it
was given only after direct comparisions had
been performed among competing brands.
Hence, the advertisement would be decep-
tive unless the association has in fact per-
formed such comparisons between the en-
dorsed brand and its leading competitors in
terms of nutritional criteria, and the results
of such comparisons conform to the net im-
pression created by the advertisement.
[Guide 3]
[40 FR 22128, May 21, 1975)
§ 255.4 Endorsements by organizations.
Endorsements by organizations, es-
pecially expert ones, are viewed as rep-
resenting the judgment of a group
whose collective experience exceeds
that of any individual member, and
whose judgments are generally free of
the sort of subjective factors which
vary from individual to individual.
Therefore an organization’s endorse-
ment must be reached by a process
112
Federal Trade Commission
sufficient to ensure that the endorse-
ment fairly reflects the collective judg-
ment of the organization. Moreover, if
an organization is represented as being
expert, then, in conjunction with a
proper exercise of its-expertise in eval-
uating the product under § 255.3 of
this part (Expert endorsements), it
must utilize an expert or experts rec-
ognized as such by the organization or
standards previously adopted by the
organization and suitable for judging
the relevant merits of such products.
Example: A mattress seller advertises that
its product is endorsed by a chiropractic as-
sociation. Since the association would be re-
garded as expert with respect to judging
mattresses, its endorsement must be sup-
ported by an expert evaluation by an expert
or experts recognized as such by the organi-
zation, or by compliance with standards pre-
viously adopted by the organization and
aimed at measuring the performance of
mattresses in general and not designed with
the particular attributes of the advertised
mattress in mind. (See also § 255.3, Example
5.)
(Guide 4]
[40 FR 22128, May 21, 1975)
§ 255.5 Disclosure of material
tions.
When there exists a connection be-
tween the endorser and the seller of
the advertised product which might
materially affect the weight or credi-
bility of the endorsement (ie, the
connection is not reasonably expected
by the audience) such connection must
be fully disclosed. An example of a
connection that is ordinarily expected
by viewers and need not be disclosed is
the payment or promise of payment to
an endorser who is an expert or well
known personality, as long as the ad-
vertiser does not represent that the
endorsement was given without com-
pensation. However, when the endors-
er is neither represented in the adver-
tisement as an expert nor is known to
a significant portion of the viewing
public, then the advertiser should
clearly and conspicuously disclose
either the payment or promise of com-
pensation prior to and in exchange for
the endorsement or the fact that the
endorser knew or had reasons to know
or to believe that if the endorsement
favors the advertised product some
connec-
§ 255.5
benefit, such as an appearance on TV,
would be extended to the endorser.
Example 1: A drug company commissions
research on its product by a well-known re-
search organization. The drug company
pays a substantial share of the expenses of
the research project, but the test design is
under the control of the research organiza-
tion. A subsequent advertisement by the
drug company mentions the research results
as the “findings” of the well-known re-
search organization. The advertiser’s pay-
ment of expenses to the research organiza-
tion need not be disclosed in this advertise-
ment. Application of the standards set by
Guides 3 and 4 provides sufficient assurance
that the advertiser’s payment will not affect
the weight or credibility of the endorse-
ment.
Example 2: A film star endorses a particu-
lar food product, The endorsement regards
only points of taste and individual prefer-
ence. This endorsement must of course
comply with § 255.1; but even though the
compensation paid the endorser is substan-
tial, neither the fact nor the amount of
compensation need be revealed.
Example 3: An actual patron of a restau-
rant, who is neither known to the public nor
presented as an expert, is shown seated at
the counter. He is asked for his “spontane-
ous” opinion of a new food product served
in the restaurant. Assume, first, that the ad-
vertiser had posted a sign on the door of the
restaurant informing all who entered that
day that patrons would be interviewed by
the advertiser as part of its TV promotion
of its new soy protein “steak”. This notifica-
tion would materially affect the weight or
credibility of the patron’s endorsement,
and, therefore, viewers of the advertisement
should be clearly and conspicuously in-
formed of the circumstances under which
the endorsement was obtained.
Assume, in the alternative, that the adver-
tiser had not: posted a sign on the door of
the restaurant, but had informed all inter-
viewed customers of the “hidden camera”
only after interviews were completed and
the customers had no reason to know or be-
lieve that their response was being recorded
for use.in an advertisement. Even if patrons
were also told that they would be paid for
allowing the use of their opinions in adver-
tising, these facts need not he disclosed.
(Guide 5]
(45 FR 3873, Jan. 18, 1980]
113