The FTC provided a series of instructive hypotheticals as part of the guideline revisions it published in the Federal Register. Below are several examples of the FTC’s wit and wisdom:
- An advertisement for a housewares store features a well-known female comedian and a well-known male baseball player engaging in lighthearted banter about products each one intends to purchase for the other. The comedian says she will buy him a Brand X, portable, high-definition television so he can finally see the strike zone. He says he will get her a Brand Y juicer so she can make juice with all the fruit and vegetables thrown at her during her performances. The comedian and baseball player are not likely to be deemed endorsers because consumers will likely realize that the individuals are not expressing their own views.
- An ad for an acne treatment features a dermatologist who claims that the product is “clinically proven” to work. Before giving the endorsement, she received a write-up of the clinical study in question, which indicates flaws in the design and conduct of the study that are so serious that they preclude any conclusions about the efficacy of the product. The dermatologist is subject to liability for the false statements she made in the advertisement. The advertiser is also liable for misrepresentations made through the endorsement.
- A well-known celebrity appears in an infomercial for an oven-roasting bag that purportedly cooks every chicken perfectly in 30 minutes. During the shooting of the infomercial, the celebrity watches five attempts to cook chickens using the bag. In each attempt, the chicken is undercooked after 30 minutes and requires 60 minutes of cooking time. In the commercial, the celebrity places an uncooked chicken in the oven-roasting bag and places the bag in one oven. He then takes a chicken-roasting bag from a second oven, removes from the bag what appears to be a perfectly cooked chicken, tastes the chicken, and says that if you want perfect chicken every time, in just 30 minutes, this is the product you need. A significant percentage of consumers are likely to believe the celebrity’s statements represent his own views even though he is reading from a script. The celebrity is subject to liability for his statement about the product. The advertiser is also liable for misrepresentations made through the endorsement.
- An advertisement for a recently released motion picture shows three individuals coming out of a theater, each of whom gives a positive statement about the movie. These individuals are actual consumers expressing their personal views about the movie. The advertiser does not need to have substantiation that their views are representative of the opinions that most consumers will have about the movie. Because the consumers’ statements would be understood to be the subjective opinions of only three people, this advertisement is not likely to convey a typicality message. If the motion picture studio had approached these individuals outside the theater and offered them free tickets if they would talk about the movie on-camera afterward, that arrangement should be clearly and conspicuously disclosed.
- An online message board designated for discussions of new music-download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.
- An infomercial for a home fitness system is hosted by a well-known entertainer. During the infomercial, the entertainer demonstrates the machine and states that it is the most effective and easy-to-use home exercise machine she has ever tried. Even if she is reading from a script, this statement would be an endorsement, because consumers are likely to believe it reflects the entertainer’s views.