PART 255 -- GUIDES CONCERNING USE OF ENDORSEMENTS AND TESTIMONI-

ALS IN ADVERTISING

Sec.

255.0 Definitions.

255.1 General considerations.

255.2 Consumer endorsements.

255.3 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 testi-

monials identically 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 "endorsement" means any

advertising message (including verbal statements, demonstrations,

or depictions of the name, signature, likeness or other identify-

ing personal characteristics of an individual or the name or seal

of an organization) which message consumers are likely to believe

reflects the opinions, beliefs, findings, or experience of a

party other than the sponsoring advertiser. The party whose

opinions, beliefs, findings, or experience the message appears to

reflect will be called the endorser and may be an individual,

group or institution.

(c) For purposes of this part, an "expert" is an individual,

group or institution possessing, as a result of experience, 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 defini-

tion of an endorsement since it is viewed by readers as a state-

ment 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 iden-

tified 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 because she has not been

fully satisfied with her own brand. This obvious fictional

dramatization of a real life situation would not be an endorse-

ment.

Example 3: In an advertisement for a pain remedy, an an-

nouncer 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 advertisement would not

be an endorsement.

Example 4: A manufacturer of automobile tires hires a well

known professional automobile racing driver to deliver its adver-

tising 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 expressly declared to

be the personal opinion of the driver, it may nevertheless con-

stitute an endorsement of the tires. Many consumers will recog-

nize 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 automo-

bile 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 advertising message reflects the

driver's personal views as well as those of the sponsoring adver-

tiser. 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-recognized 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 reflect the honest opinions,

findings, beliefs, or experience of the endorser. Furthermore,

they may not contain any representations which would be decep-

tive, or could not be substantiated if made directly by the

advertiser. [See Example 2 to Guide 3 (255.3) illustrating that a

valid endorsement may constitute 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 presented

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 determined by such factors as

new information on the performance or effectiveness of the

product, a material alteration in the product, changes in the

performance of competitors' products, and the advertiser's con-

tract commitments.

(c) In particular, where the advertisement 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

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) 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 because of its remarkable quick drying properties and its

durability. This endorsement must comply with the pertinent

requirements of Guide 3. Subsequently, the advertiser

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 whether the contractor would continue to specify the

paint and to subscribe to the views presented previously.

Example 2: A television advertisement portrays a woman

seated at a desk on which rest five unmarked electric typewrit-

ers. An announcer says "We asked Mrs. X, an executive 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. Assuming that con-

sumers would perceive this presentation as a "blind" test, this

endorsement 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 consumers on a central

or key attribute of the product or service will be interpreted as

representing that the endorser's experience is representative of

what consumers will generally achieve with the advertised product

in actual, albeit variable, conditions of use. Therefore, unless

the advertiser possesses and relies upon adequate substantiation

for this representation, the advertisement should either clearly

and conspicuously disclose what the generally expected perform-

ance would be in the depicted circumstances or clearly and con-

spicuously disclose the limited applicability 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

published in the FEDERAL REGISTER on January 18, 1980.

(b) Advertisements presenting endorsements 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

advertisements 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 endorsements unless (1) the advertiser has

adequate scientific substantiation for such claims and (2) the

claims are not inconsistent with any determination that has been

made by the Food and Drug Administration with respect to the drug

or device that is the subject of the claim.

Guide 2, Example 1: An advertisement presents the endorse-

ment 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

substantiation for the implied claim that such performance re-

flects that which a significant proportion of consumers would be

likely to experience, the advertiser should include a disclosure

that either states clearly and conspicuously what the generally

expectable performance would be or clearly and conspicuously

informs consumers that the performance experienced by the endors-

er is not what they should expect to experience. The mere dis-

closure that "not all consumers will get this result." is insuf-

ficient because it can imply that while all consumers cannot

expect the advertised results, a substantial number can expect

them. [See the cross reference in Guide 2(a) regarding the

acceptability of disclaimers or disclosures.]

Example 2: An advertiser presents the results 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 families could not tell the difference be-

tween 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 endors-

ing 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

advertiser'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 consum-

ers 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 represents, directly or by

implication, that the endorser is an expert with respect 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 endorsing a product, take into

account factors not within his expertise (e.g., matters of taste

or price), his endorsement must be supported by an actual exer-

cise of his expertise in evaluating product features or charac-

teristics 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

evaluation must have included an examination 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 endorsement. Where, and to the

extent 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 respect 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 creat-

ed by the endorsement 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 "engineer" implies that the endorser's profes-

sional training and experience are such that he is well acquaint-

ed with the design and performance of automobiles. If the en-

dorser's field is, for example, chemical engineering, the en-

dorsement would be deceptive.

Example 2: A manufacturer of automobile parts advertises

that its products are approved by the "American Institute of

Science." From its very name, consumers would infer that the

"American Institute of Science" is a bona fide independent test-

ing organization with expertise in judging automobile parts and

that, as such, it would not approve any automobile part without

first testing its efficacy by means of valid scientific methods.

Even if the American Institute of Science is such a bona fide

expert testing organization, as consumers would expect, the

endorsement may nevertheless be deceptive unless the Institute

has conducted valid scientific tests of the advertised products

and the test results support the endorsement message.

Example 3: A manufacturer of a non-prescription drug

product represents that its product has been selected in prefer-

ence to competing products by a large metropolitan hospital. The

hospital has selected the product 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 decep-

tive because the basis for the choice of the manufacturer's

product, convenience of packaging, is neither relevant nor avail-

able to the consumers.

Example 4: The president of a commercial "home cleaning

service" states in a television advertisement that the services

uses a particular brand of cleanser in its business. Since the

cleaning service's professional success depends largely upon the

performance of the cleansers it uses, consumers would expect the

service to be expert with respect to judging cleansing ability;

and not be satisfied using an inferior cleanser in its business

when it knows of a better one available to it. Accordingly, the

cleaning service's endorsement must at least conform to those

consumer expectations. The service must, of course, actually use

the endorsed cleanser. Additionally, on the basis of its exper-

tise, it must have determined that the cleansing ability of the

endorsed cleanser is at least equal (or superior, if such is the

net impression conveyed by the advertisement) to that of compet-

ing products with which the service has had experience and which

remain reasonably available to it. Since in this example, 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 competitors, it is suffi-

cient if the service has relied solely upon its accumulated

experience in evaluating cleansers without having to have per-

formed 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

beverages as its "official breakfast drink." As in Example 4,

the association would be regarded as expert in the field of

nutrition for purposes 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 endorse-

ment must be based upon an expert evaluation of the nutritional

value of the endorsed beverage. Furthermore, unlike Example 4,

the use of the words "selected" and "official" in this endorse-

ment imply that it was given only after direct comparisons had

been performed among competing brands. Hence, the advertisement

would be deceptive unless the association has in fact performed

such comparisons 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 organizations.

Endorsements by organizations, especially expert ones, are

viewed as representing 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 organiza-

tion's endorsement fairly reflects the collective judgment of the

organization. Moreover, if an organization is represented as

being expert, then, in conjunction with a proper exercise of its

expertise in evaluating the product under 255.3 of this part

(Expert endorsements), it must utilize an expert or experts

recognized 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 association. Since the association

would be regarded as expert with respect to judging mattresses,

its endorsement must be supported by an expert evaluation by an

expert or experts recognized as such by the organization, or by

compliance with standards previously 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 connections.

When there exists a connection between the endorser and the

seller of the advertised product which might materially affect he

weight or credibility of the endorsement (i.e., 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 the payment or

promise of payment to an endorser who is an expert or well known

personality, as long as the advertiser does not represent that

the endorsement 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 conspicuously

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 reasons to know or to believe that if the endorsement

favors the advertised product some 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 research 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 organi-

zation. A subsequent advertisement by the drug company mentions

the research results as the "findings" of the well-known research

organization. The advertiser's payment of expenses to the

research organization need not be disclosed in this advertise-

ment. Application of the standards set by Guide 3 and 4 provides

sufficient assurance that the advertiser'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 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 restaurant, who is neither

known to the public nor presented as an expert, is shown seated

at the counter. He is asked for his "spontaneous" opinion of a

new food product served in the restaurant. Assume, first, that

the advertiser had posted a sign on the door of the restaurant

informing all who entered that day that patrons would be inter-

viewed by the advertiser as part of its TV promotion of its new

soy protein "steak". This notification would materially affect

the weight or credibility of the patron's endorsement, and,

therefore, viewers of the advertisement should be clearly and

conspicuously informed of the circumstances under which the

endorsement was obtained.

Assume, in the alternative, that the advertiser had not

posted a sign on the door of the restaurant, but had informed all

interviewed customers of the "hidden camera" only after inter-

views were completed and the customers 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 allowing the use of their opinions in advertising, these

facts need not be disclosed.