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Results May No Longer Vary - Say it Ain't So!

27 Jan, 2011 By: Jeffrey Richter, Cathy Polisoto


Effective Dec. 1, 2009, the Federal Trade Commission’s (FTC) revised Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Guides”) abolished the safe harbor for atypicality disclaimers. It is no longer safe to use an impressive or extraordinary testimonial with a disclaimer stating merely “Results may vary” or “Results not typical.” Under the revised Guides, if you use an impressive testimonial (that is not the typical result for your customers), the FTC requires you to also describe the result that the average consumer can expect.

If you fail to explain that the impressive testimonial is not the typical result and also describe the typical result, the FTC may deem your advertisement to be deceptive under Section 5 of the FTC Act. Better Business Bureau chapters, attorneys general, county district attorneys, and the National Advertising Review Council also use the same or similar standards.

All of the examples in the Guides involve products or services that lend themselves to fairly easy measurement or description of a “typical result.” In the absence of empirical customer experience, data or statistics, typicality may arise from proven testing or existing science. However, in certain industries, it is difficult to describe a “typical result” when each client’s facts and circumstances are so different.

If you cannot describe a typical result, then you must make an extra effort to explain that your impressive testimonials are not typical. Note the following language excerpted from the Guides:

“Nonetheless, the Commission cannot rule out the possibility that a strong disclaimer of typicality could be effective in the context of a particular advertisement. Although the Commission would have the burden of proof in a law enforcement action, the Commission notes that an advertiser possessing reliable empirical testing demonstrating that the net impression of its advertisement with such a disclaimer is non-deceptive will avoid the risk of the initiation of such an action in the first instance.” (Emphasis added)

The ideal situation would be to hire an independent firm to convene a focus group to view your advertisement and conclude that the testimonials are obviously individual results and that no reasonable prospective customer would expect that he or she would experience the same results or that they are typical. Although many advertisers may balk at this expense and potential delay, it might provide the legal comfort that your spots do not violate the Guides.
Alternatively, if you prefer to include atypical testimonials in your advertisement and do not have the time to obtain empirical testing, you can include express language explaining that these testimonials are not typical. Explain in the copy that not everyone can expect the same results experienced by the testifiers.
For TV, it is possible to put the disclaimer language in a chyron rather than in the audio, but that option is less optimal because it will not be as effective in communicating the message to the viewers and therefore will not be as protective to you in terms of compliance. If you elect to use a chyron, it should be sufficiently large and clear and appear on the screen long enough to be readable.

Remember, especially where some reasonable alternative is not available to the advertiser, the general rule is you can no longer make extraordinary non-typical claims regarding the benefits or performance of your product or service and excuse it with the use of “Results may vary.”

Jeffrey Richter is a partner and Cathy Polisoto is an associate at Los Angeles-based Finestone & Richter. They can be reached at (310) 575-0800.
 


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