Guides Concerning Use Of Endorsements And Testimonials In Advertising
16 CFR Part 255 · Guides · in the Code of Federal Regulations 1976-1995 (19 annual editions)
Scanned CFR pages, OCR text may contain errors; the linked Library of Congress PDF is the authority. Not legal advice; not affiliated with the FTC. These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.
Latest edition: Library of Congress, 1995 CFR · Earliest edition: 1976 CFR
Text (1995 edition, OCR)
§ 254.9
§254.9 Deceptive or unfair collection
and credit practices.
(a) An industry member should not
use any deceptive representations or
deceptive means to collect or attempt
to collect tuition or other charges from
its students. For example, an industry
member should not represent that a de-
linguent account has been or will be re-
ferred to an independent collection
agency or to an attorney unless such is
the fact.
(b) An industry member should not
seek to enforce or obtain a judgment or
otherwise attempt to collect on any
contract or other instrument between
itself and a student, or transfer or as-
sign such contract or other instrument
to a third party for the purpose of col-
lection or of enforcing or obtaining a
judgment on said contract or instru-
ment, if the member or its employees
or representatives misrepresented the
nature or the terms of said contract or |
instrument at the time or prior to the
time the contract or instrument was
signed.
Nore: The Commission’s Guides Against
Debt Collection Deception (Part 237 of this
chapter) afford further guidance in this area.
[Guide 9]
$254.10 Affirmative disclosure prior to
enrollment. : ;
Before obtaining the signature of a
prospective student or of his parent or
guardian on an enrollment contract or
contract of sale, an industry member
should furnish in writing to that per-
son or persons the following informa-
tion:
(a) The member’s policy and regula-
tions relative to make-up work, delay
or delinquency in meeting course re-
quirements, and standards required of
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, equip-
ment, or materials other than usual
student supplies such as paper and pen-
cils, or utilize any supplementary serv-
ices offered by the member, and the
cost thereof is not included in the con-
tract price of the course, an itemized
16 CFR Ch. I (1-1-95 Edition)
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 equip-
ment 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 grad-
uates 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
TESTIMONIALS 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 generally used
hereinafter to cover both terms and
situations.
(b) For purposes of this part, an en-
dorsement means any advertising mes-
sage (including verbal statements,
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 sponsor-
ing advertiser. The party whose opin-
ions, beliefs, findings, or experience the
message appears to reflect will be
called the endorser and may be an indi-
vidual, group or institution.
92,
Federal Trade Commission
(c) For purposes of this part, the
term product includes any product,
service, company or industry.
(ad) For purposes of this part, an ez-
_ pert is an individual, group or institu-
tion possessing, as a result of experi-
ence, study or training, knowledge of a
particular subject, which knowledge is
superior to that generally acquired 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 definition 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 alteration in or
quotation from the text of the review which
does not fairly reflect its substance 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 out-
side 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 because
she has not been fully satisfied with her own
brand. This obvious fictional dramatization
of a real life situation would not be an en-
dorsement.
Example 3: In an advertisement for a pain
remedy, an announcer who is not familiar to
consumers except as a spokesman for the ad-
vertising 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 of
the driver, it may nevertheless constitute an
endorsement of the tires. Many consumers
will recognize this individual as being pri-
marily a racing driver and not merely a
spokesman or announcer for the advertiser.
Accordingly, they may well believe the driv-
er would not speak for an automotive prod-
uct unless he/she actually believed in what
he/she was saying and had personal knowl-
edge sufficient to form that belief. Hence
they would think that the advertising mes-
sage reflects the driver’s personal views as
well as those of the sponsoring advertiser.
This attribution of the underlying views to
the driver brings the advertisement within
the definition of an endorsement for pur-
poses of this part.
93
§ 255.1
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 state-
ment 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 reflect
the honest opinions, findings, beliefs,
or experience of the endorser. Further-
more, they may not contain any rep-
resentations which would be deceptive,
or could not be substantiated if made
directly by the advertiser. [See Exam-
ple 2 to Guide 3 (§255.3) illustrating
that a valid endorsement may con-
stitute all or part of an advertiser’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 product.
An advertiser may use an endorsement
of an expert or celebrity only as long
as it has good reason to believe that
the endorser continues to subscribe to
the views presented. An advertiser may
satisfy this obligation by securing the
endorser’s views at reasonable inter-
vals where reasonableness will be de-
termined by such factors as new infor-
mation on the performance or effec-
tiveness of the product, a material al-
teration in the product, changes in the
performance of competitors’ products,
and the advertiser’s contract commit-
ments. ;
(c) In particular, where the advertise-
ment represents that the endorser uses
the endorsed product, then the en-
dorser must have been a bona fide user
of it at the time the endorsement was
given, Additionally, the advertiser may
continue to run the advertisement only
so long as he has good reason to believe
that the endorser remains a bona fide
user of the product. [See §255.1(b) re-
garding the “good reason to believe’’
requirement.]
Guide 1, Example 1; A building contractor
states in an advertisement that he specifies
the advertiser’s exterior hcuse paint because
of its remarkable quick drying properties
§ 255.2
and its durability. This endorsement must
comply with the pertinent requirements of
Guide 3. Subsequently, the advertiser refor-
mulates its paint to enable it to cover exte-
rior surfaces with only one coat. Prior to
continued use of the contractor’s endorse-
ment, the advertiser must contact the con-
tractor in order to determine whether the
contractor would continue to specify the
paint and to subscribe to the views presented
previously.
Ezample 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 execu-
tive 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 machines in
her work. In addition, the endorsement may
also be required to meet the standards of
Guide 3 on Expert Endorsements.
[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 re-
lies upon adequate substantiation for
this representation, the advertisement
should either clearly and conspicuously
disclose what the generally expected
performance would be in the depicted
circumstances or clearly and conspicu-
ously disclose the limited applicability
of the endorser’s experience to what
consumers may generally expect to
achieve. The Commission’s position re-
garding the acceptance of disclaimers
or disclosures is described in the pre-
amble to these Guides published in the
FEDERAL REGISTER on January 18, 1980.
(b) Advertisements presenting en-
dorsements by what are represented,
directly or by implication, to be ‘‘ac-
tual consumers” should utilize actual
94
16 CFR Ch. | (1-1-95 Edition)
consumers, in both the audio and video
or clearly and conspicuously disclose
that the persons in such advertise-
ments 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 1: An advertisement pre-
sents 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 pos-
sesses 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 ex-
pect 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.)
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-
Hes could not tell the difference between the
advertised mix and their own cakes baked
from scratch. Many of the consumers are ac-
tually pictured in the advertisement along
with relevant, quoted portions of their state-
ments endorsing the product. This use of the
results of a poll or survey of consumers prob-
ably represents a promise to consumers that
this {s the typical result that ordinary con-
sumers can expect from the advertiser’s cake
mix. :
Ezample 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
Federal Trade Commission
spontaneous, honest opinions of the advertis-
er’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 specifically
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 employed, 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 prod-
uct features or characteristics with re-
spect to which he is expert and which
are both relevant to an ordinary con-
sumer’s use of or experience with the
product and also are available to the
ordinary consumer. This evaluation
must have included an examination or
testing of the product at least as exten-
sive as someone with the same degree
of expertise would normally need to
conduct in order to support the conclu-
sions presented in the endorsement.
Where, and to the extent that, the ad-
vertisement implies that the endorse-
ment was based upon a comparison
such comparison must have been in-
cluded in his evaluation; and as a re-
sult of such comparison, he must have
concluded that, with respect to those
features on which he is expert and
which are relevant and available to an
ordinary consumer, the endorsed prod-
uct is at least equal overall to the com-
petitors’ products. Moreover, where the
net impression created by the endorse-
ment is that the advertised product is
superior to other products with respect
to any such feature or features, then
the expert must in fact have found
such superiority.
Example 1: An endorsement of a particular
automobile by one described as an ‘“‘engi-
95
§ 255.3
neer” implies that the endorser’s profes-
sional training and experience are such that
he is well acquainted with the design and
performance of automobiles. If the endors-
er’s field is, for example, chemical engineer-
ing, the endorsement would be deceptive.
Example 2: A manufacturer of automobile
parts advertises that its products are ap-
proved by the “American Institute of
Science.’’ From its very name, consumers
would infer that the “American Institute of
Science” is a bona fide independent testing
organization 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 sci-
entific methods. Even if the American Insti-
tute of Science is such a bona fide expert
testing organization, as consumers would ex-
pect, the endorsement may nevertheless be
deceptive unless the Institute has conducted
valid scientific tests of the advertised prod-
ucts and the test results support the endorse-
ment 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 de-
ceptive because the basis for the choice of
the manufacturer’s product, convenience of
packaging, is neither relevant nor available
to consumers.
Example 4: The president of a commercial
“home cleaning service’? states in a tele-
vision 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 ex-
pect the service to be expert with respect to
judging cleansing ability, and not be satis-
fied using an inferior cleanser in its business
when it knows of a better one available to it.
Accordingly, the cleaning service’s endorse-
ment 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 rea-
sonably available to it. Since in this exam-
ple, the cleaning service’s president makes
no mention that the endorsed cleanser was
“chosen,” “selected,” or otherwise evaluated
in side-by-side comparisons against its com-
petitors, it is sufficient if the service has re-
lied solely upon its accumulated experience
§ 255.4
in evaluating cleansers without having to
have performed side-by-side or scientific
comparisons,
Ezample 5: An association of professional
athletes states in an advertisement that it
has “selected”? a particular brand of bev-
erages as its ‘official breakfast drink’. As in
Example 4, the association would be regarded
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 endorsement
must be based upon an expert evaluation of
the nutritional value of the endorsed bev-
erage. Furthermore, unlike Example 4, the
use of the words ‘‘selected’’ and “‘official’’ in
this endorsement imply that it was given
only after direct comparisions had been per-
formed among competing brands. Hence, the
advertisement would be deceptive unless the
association has in fact performed such com-
parisons between the endorsed brand and its
leading competitors in terms of nutritional
criteria, and the results of such comparisons
conform to the net impression created by the
advertisement.
[Guide 3]
(40 FR 22128, May 21, 1975]
§255.4 Endorsements by
tions.
Endorsements by organizations, espe-
cially 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 suf-
ficient to ensure that the endorsement
fairly reflects the collective judgment
of the organization. Moreover, if an or-
ganization is represented as being ex-
pert, then, in conjunction with a prop-
er exercise of its expertise in evaluat-
ing the product under §255.3 of this
part (Expert endorsements), it must
utilize an expert or experts recognized
as such by the organization or stand-
ards previously adopted by the organi-
zation and suitable for judging the rel-
evant merits of such products.
Erample: 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-
organiza-
96
16 CFR Ch. | (1-1-95 Edition)
zation, or by compliance with standards pre-
viously adopted by the organization and
aimed at measuring the performance of mat-
tresses in general and not designed with the
particular attributes of the advertised mat-
tress in mind. (See also §255.3, Example 5.)
[Guide 4)
(40 FR 22128, May 21, 1975)
§255.5 Disclosure of material connec-
tions.
When there exists a connection be-
tween the endorser and the seller of the
advertised product which might mate-
rially affect the weight or credibility
of the endorsement (i.e., the connection
is not reasonably expected by the audi-
ence) such connection must be fully
disclosed. An example of a connection
that is ordinarily expected by viewers
and need not be disclosed is the pay-
ment or promise of payment to an en-
dorser who is an expert or well known
personality, as long as the advertiser
does not represent that the endorse-
ment was given without compensation.
However, when the endorser is neither
represented in the advertisement as an
expert nor is known to a significant
portion of the viewing public, then the
advertiser should clearly and conspicu-
ously disclose either the payment or
promise of compensation prior to and
in exchange for the endorsement or the
fact that the endorser knew or had rea-
sons to know or to believe that if the
endorsement favors the advertised
product some benefit, such as an ap-
pearance 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 re-
search project, but the test design is under
the control of the research organization. A
subsequent advertisement by the drug com-
pany mentions the research results as the
“findings” of the well-known research orga-
nization. The advertiser's payment of ex-
penses to the research organization need not
be disclosed in this advertisement. Applica-
tion of the standards set by Guides 3 and 4
provides sufficient assurance that the adver-
tiser’s payment will not affect the weight or
credibility of the endorsement.
Example 2: A film star endorses a particular
food product. The endorsement regards only
points of taste and individual preference.
This endorsement must of course comply
with §255.1; but even though the compensa-
Federal Trade Commission
tion paid the endorser is substantial, neither
the fact nor the amount of compensation
need be revealed.
Example 3: An actual patron of a res-
taurant, who is neither known to the public
nor presented as an expert, is shown seated
at the counter. He is asked for his ‘‘sponta-
neous” 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 interviewed
customers of the “hidden camera” only after
interviews were completed and the cus-
tomers had no reason to know or believe
that their response was being recorded for
use in an advertisement. Even if patrons
were also told that they would be paid for al-
lowing the use of their opinions in advertis-
ing, these facts need not be disclosed.
(Guide 5}
[45 FR 3873, Jan. 18, 1980]
PART 256—GUIDES FOR THE LAW
BOOK INDUSTRY
Sec.
256.0 Definitions.
256.1 General disclosures.
256.2 Disclosures relative to
supplementation.
256.38 Disclosures relative to texts and trea-
tises.
256.4 New revisions or replacement sets or
series.
256.5 Representations, express or implied,
describing a work as ‘“‘new’’, ‘“‘current”’ or
“up-to-date’’.
256.6 Disclosures relative to misleading ti-
tles of texts and treatises.
256.7 Representations relative to works not
yet published.
256.8 Representations relative to jurisdic-
tional designations.
256.9 Catalogs.
256.10 Subscription renewal notices.
256.11 Disclosures on publications.
256.12 Jurisdictional designations of publi-
cations.
256.13 Disclosures on supplements.
256.14. Upkeep service.
256.15 Billing practices.
97
§ 256.1
256.16 Added materials—germane subject
matter.
256.17 Misrepresentations (genera)).
AUTHORITY: 38 Stat. 717, as amended; (15
U.S.C, 41-58).
Source: 40 FR 33436, Aug. 8, 1975, unless
otherwise noted.
§256.0 Definitions. .
(a) Industry product. Any law book,
case book, publication, series, service,
law research materials, supplements
and other printed materials of similar
nature as well as materials appearing
in microform,~ film, tape or other
nonprint format designed primarily for
use by members of the law profession
and by law schools, excluding second-
hand or used law materials.
(b) Treatise or text. An exposition—
critical, evaluative, interpretive or in-
formative—which analyzes one or more
areas. of the law. Generally, a legal
treatise is more exhaustive in scope
than an encyclopedia, and is considered
a secondary aid.
(c) Set. A group of books published as
a unit by virtue of such unifying char-
acteristics as common authorship, edi-
torship, relevance, or subject.
(d) Series. A number of separate
works or sets, usually related to one
another in subject or otherwise, issued
in succession, normally by the same
publisher or in uniform style, with a
collective title.
(e) Looseleaf (binder). A law book or
series of law books that consist of ring
or post-bound (compression-type) bind-
ers used to hold separate looseleaf
sheets as opposed to the bound book
format wherein pages are permanently
attached to the binder.
[40 FR 33436, Aug. 8, 1975; 40 FR 36116, Aug. 19,
1975]
§256.1 General disclosures.
Direct-mail promotional materials}
or oral representations soliciting the
1 Where the direct-mail advertising of spe-
cific industry products consists of a pro-
motional package containing more than one
advertising piece (e.g., a brochure and/or
cover letter, order form, and/or reply card),
the disclosures required by §§256.1-256.3,
256.5-256.8 and 256.17 must appear clearly and
conspicuously in the place where they are
most likely to be noticed, on at least one
Continued