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1 Sep, 2009 By: Thomas Haire, Jacqueline Renfrow Response

Congdon Talks About Proposed FTC Testimonial Changes and His Recent Senate Appearance

By Thomas Haire (

On July 21, Jon Congdon, president and co-founder of Product Partners, parent company of the successful Beachbody line of DRTV fitness products, appeared before the United States Senate Committee on Commerce, Science and Transportation to take up the industry's fight against the Federal Trade Commission's (FTC) proposed changes to its "Guides Concerning the Use of Endorsements and Testimonials." Congdon, a member of the Electronic Retailing Association's (ERA) Board of Directors, was joined on Capitol Hill by industry legend Greg Renker. Recently, Response caught up with Congdon to talk about the FTC's proposed changes and his Senate appearance.

Q: What makes the proposed changes to the FTC's "Guides Concerning the Use of Endorsements and Testimonials in Advertising" so troubling for the direct response business?

A: What the FTC has done is create a proposal that will not only go after bad marketers, but will also — unfortunately — clip the wings of good marketers. The FTC is trying to strengthen its hand beyond disclaimers like "results not typical" or "results may vary" that are often used with testimonials in direct response campaigns. But while the FTC contends it will not go after good marketers, that doesn't mean that there won't be unintended consequences for good marketers. The language must be made clearer so that, as an upstanding marketer, we are not brought to question by networks, call centers, fulfillment houses or other vendors we work with regarding our use of testimonials.

Q: Can you give an example of how these proposed changes might alter the use of testimonials in a campaign?

A: There has been a lot of talk about the FTC wanting to limit testimonials to "average" results. What is an average result? If you're a 40-year old man looking to lose 50 pounds, and you use Power 90 the way that it is designed, you're likely to lose 35-40 pounds. If you're a 22-year old woman looking to lose 10 pounds and tone yourself, then you're likely to accomplish that as well. How can I quantify an "average" result out of that? How can Greg Renker quantify an "average" acne loss for varying customers? Marketers need to be able to present inspiring testimonials for our products to let consumers, who may be thinking they are stuck as overweight or with acne, know that they can make a change. Good marketers do that by marketing good products and utilizing inspiring testimonials to prompt consumers to try the products. These new proposed guidelines would make our job as marketers nearly impossible, no matter how good our products are.

Q: How would the liability of marketers and their endorsers change under these proposed new guidelines?

A: The problem with the current guidelines is that the "results not typical" disclaimer inadvertently created a safe harbor for bad marketers. We are all for closing that safe harbor to marketers of products that promise what they can't possibly deliver. However, the proposed changes, as currently written, would lump the good marketers under an unworkable umbrella with the bad. The FTC has the authority to go after bad marketers through a number of other guidelines. We believe it should use that authority to focus on those who deserve scrutiny, and if it takes removing this safe harbor, then we're all for it.

Q: What was the experience of testifying before the U.S. Senate like? Do you think your testimony and that of Greg Renker helped change the tenor of the disucssion in Washington about these proposed changes?

A: It was inspiring, an amazing experience. While it was my first time, Greg had been there to testify before regarding infomercial marketing. I feel like we got heard and that the FTC and the senators in the room understand where we stand. Based on what I heard about the previous week's FTC testimony, I think we were able to change the tone of the debate, though we'll know more soon (after a planned meeting with the FTC).

Q: What are the industry's next steps in the fight against these proposed guidelines?

A: I hope we'll see some changes in the FTC's proposal — changes the industry can support. I'd love to see a situation where we can say to the FTC, "Thanks for making the changes to make the policies more clear, and to allow good marketers to operate their businesses while still giving the FTC the teeth it needs to do its job." The industry needs to continue to support the Electronic Retailing Self-Regulation Program (ERSP). You can't just talk about self-regulation, you have to be active and do it. If these things happen, we'll be in good shape.

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About the Author: Thomas Haire

Thomas Haire

About the Author: Jacqueline Renfrow

Thomas Haire

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