Currently, the FTC is proposing changes to its guidance on consumer testimonials. These changes will directly affect you and the way you do business. There are several reasons why honest marketers, particularly in the direct response world, should be worried.
If these changes are approved, the FTC will no longer allow for the general use of a “results not typical†claim. Marketers may instead offer clinical evidence of the typical performance of the product, or in some cases, offer an extreme level of detail about how the product was used—but generally, they may face liability without the more stringent type of disclosure. Here marketers will be asked to remove claims that are factually accurate and adequately documented.
As you know, in most cases, it will be extremely difficult or even impossible to provide the evidence the FTC is looking for. It is likely that companies will lack the resources to do a comprehensive study, so the consumer will be left with absolutely no idea of whether the product works at all. This gives them little incentive to try the products put forth by honest advertisers who wish to comply with the fullest extent of the law. Or worse, because the FTC does not propose very stringent standards for the type of clinical evidence needed, dishonest marketers will be rewarded. For example, today Mary says she has lost 20 pounds by following an exercise regime and the consumer is clearly reminded that most people will not have the same results she had. Tomorrow, if these guides are approved, less honest marketers will risk running afoul of the FTC’s guidance and say “the median weight loss for women under 30 who remained in the program for more than one year was 15 lbs.†when, in fact, a more accurate description of the product’s performance would be “the mean weight loss for program participants was 2 lbs.†The exact same product could appear to produce vastly different results by altering the study design.
The FTC also plans on amending rules that apply to talent and aspiring actors who do testimonials in the hope of gaining exposure. These alterations would impose liability on “experts†or celebrities for certain types of claims. It would also add to the disclosure requirements. Additionally, the changes could impose liability on bloggers and other new forms of advertising. The full proposal can be read here.
ERA is involved in presenting a forceful response to this proposal. We will be submitting comments to the FTC and continuing our advocacy on the Hill. Please don’t hesitate to contact me if you have any questions or would like to learn more about this issue.
Tomi Turner is ERA’s legislative manager. She can be reach at (703) 908-1022, or via e-mail at tturner@retailing.org.
Tags: advertisers, capitol hill, claims, consumer, drtv, electronic retailing association, ERA, ftc, Government Affairs, hosts, Infomercials, marketers, products, testimonials, tomi turner
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