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Legal Review: FTC Decides 'Results Not Typical' No Longer Good Enough

1 Jan, 2009 By: Jeffrey D. Knowles, Venable LLP’s Advertising, Response Contributor Response

Alas, poor "Results not typical"!

I knew him, Horatio, a disclaimer of infinite value, of most excellent effect.

He hath borne on his back a thousand weight-loss testimonials ...(With apologies to William Shakespeare)

The Federal Trade Commission (FTC) recently published proposed revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R., Part 255). While the notice proposes a number of changes to the current guides, the most significant is the deletion of the "safe harbor" provision that allows advertisers to use unusually successful testimonials, as long as those testimonials are accompanied by a typicality disclaimer — "results not typical," or something similar.

Gary D. Hailey
Gary D. Hailey

The FTC now believes that "best-case scenario" testimonials are likely to be deceptive unless the advertiser discloses what its average customer achieves. Its belief is based on the results of two consumer research studies the agency funded, which concluded that consumers interpret advertisements containing testimonials as representing that the results reported by the testimonials are generally representative of what other consumers can expect to achieve.

The proposed guides state that testimonials that do not describe typical consumer experiences should be accompanied by disclosure of the results consumers can generally expect to achieve from the advertised product or program. Any disclosure of the average results achieved by consumers — such as, "The average user of the XYZ weight-loss program lost 10 pounds in 8 weeks" — will be treated as a claim that triggers the usual substantiation requirements.

Jeffrey D. Knowles
Jeffrey D. Knowles

If you don't have clinical data that enables you to substantiate what consumers will generally achieve with your product, the FTC offers you two alternatives — get that data or stop using "success story" testimonials.

The FTC notice says that it "does not assume that the use of testimonials necessarily gives rise to typicality messages." If your testimonials merely express subjective opinions about your product or service (e.g., "It was easy to use" or "The workout was a lot of fun," etc.), there's probably no need for a disclosure. But testimonial speakers who make statements about objective, quantifiable results will trigger the new rules.

There may be one other alternative to disclosing average results. While the FTC has concluded that "Results not typical" usually won't get the job done, they do admit that a strong enough disclaimer could be effective in the context of a particular advertisement.

But an example that the FTC proposes to add to the "Guides" makes it clear that even a typicality super that is much stronger than most direct response marketers would want to use may not be strong enough. Here's the example from the FTC proposal:

A brochure for a baldness treatment consists entirely of testimonials from satisfied customers who say that after using the product, they had amazing hair growth ... even if the advertiser includes a disclaimer — such as,

"Notice: These testimonials do not prove our product works.

You should not expect to have similar results" — the ad is likely to be deceptive unless the advertiser has adequate substantiation that new users typically will experience results similar to those experienced by the testimonialists. [Emphasis added]

The FTC clearly doesn't like the kind of testimonial supers that most direct response advertisers have been using. While the agency can't say that typicality disclaimers are always inadequate, in the majority of cases where testimonials report specific and atypical results, advertisers must disclose what the average consumer can expect.

Of course, these guides are not laws or regulations — they represent the government's interpretation of how the FTC Act applies to testimonials. However, if the final guides are similar to those proposed, you can expect enforcement actions to be filed against companies whose advertising does not conform. In any such proceeding, the FTC must prove that a particular advertisement is deceptive, but with courts often deferring to the government, advertisers targeted will face an uphill fight.

Gary D. Hailey and Jeffrey D. Knowles are partners at Washington, D.C.-based Venable. They specialize in advertising and marketing law and can be reached at (202) 344-4000.

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