Nutrisystem’s Pinterest Testimonials Found to Violate FTC Guidelines14 Aug, 2012 By: Gregory J. Sater
Social media presents amazing opportunities to marketers that want to attract new customers and/or engage their existing customers in an ongoing dialogue, but it also presents a unique set of legal risks.
Being aware of the legal principles that apply – and making sure that everyone in your organization who handles social media is aware of them – is very important. Many companies have a talented group of young, enthusiastic, Internet-savvy people working for them on social media. They’re doing great work. But do they understand the legal trouble the company could get into as a result of their activities if they’re not careful in what they post – and how they present it – on Facebook, Twitter, etc.?
The answer is: probably not. And while it’s common for their employers to seek outside legal review of the company’s spots and infomercials before airing them on TV, it’s far less common for such companies to seek such review when it comes to their social media postings, or even to seek training for their personnel on the subject.
One of the areas of law that applies to social media is the Federal Trade Commission (FTC) Act and, in particular, the principles that will be applied by the FTC when it comes across testimonials. A recent case at the National Advertising Division (NAD) of the Better Business Bureau illustrates this.
Pinterest, as many of you probably know, is a photo-sharing website. Its main attraction is its virtual pinboard. On the site, users can create and manage collections of digital content, including photographs, that they “pin” to their pinboards. (All pinboards on the site are open to the public, and can be found using search terms.)
Nutrisystem had a pinboard on Pinterest entitled “Real Customers, Real Success” that featured photos of Nutrisystem customers who had experienced significant weight loss. For example, a couple of the “pins” said: “Christine H. lost 223 lbs. on Nutrisystem,” and “Lisa M. lost 115 lbs. on Nutrisystem.”
In this case, the NAD took a look at Nutrisystem’s Pinterest pinboard and decided that the consumer weight-loss stories that were posted there required an additional disclosure in order to comply with the FTC’s “Guidelines Concerning the Use of Endorsements and Testimonials in Advertising.” The NAD said the “pins” on the pinboard touted weight-loss results that were not typical for Nutrisystem customers in general, and therefore should be qualified with a disclosure of the results that consumers generally can expect to achieve from the Nutrisystem weight-loss program. Nutrisystem responded that such a disclosure had been omitted inadvertently from its Pinterest pinboard, and it addressed the problem by adding: “Results not typical. On Nutrisystem, you can expect to lose at least 1-2 lbs. per week.” Because at least some of the people in the Nutrisystem “pins” had been paid consideration, Nutrisystem added, “Individuals are remunerated.”
Of course, it’s vital not only to make such a disclosure in a situation like that, but also to make it clear and conspicuous and in close proximity to the advertising claim that triggered the need for the disclosure. If it’s buried in small print, or is hard to notice, that’s not going to suffice. This is something that can lead to significant liability, depending on the case, and not just a slap on the wrist. Your social media activities are being watched! What you’re doing on Pinterest is no less important, legally, than what you’re doing on TV.
Gregory J. Sater is a partner in Venable LLP‘s Advertising, Marketing and New Media Group. He can be reached via E-mail at firstname.lastname@example.org.