ANA Opposes Changes in FTC Guides for the Use of Endorsements and Testimonials in Advertising

The Association of National Advertisers (ANA) has urged the Federal Trade Commission (FTC) to reject a proposed change in the Guides Concerning the Use of Endorsements and Testimonials in Advertising. ANA filed a detailed comment letter with the FTC arguing that the current Guides reflect an appropriate balance between the government's interest in protecting consumers and the interests of marketers in using endorsements and testimonials when communicating with consumers.

Dan Jaffe, ANA Executive Vice President, stated: "Our filing demonstrated that testimonials and endorsements are a long-standing and effective marketing practice, used by virtually every industry sector. We also showed that there are multiple layers of regulatory and self-regulatory enforcement already in place to carry out the goals of the Guides, from the FTC to state attorneys general and the NAD. The changes proposed in the FTC's Request for Comment would raise serious First Amendment concerns and should not be adopted."

The ANA letter focused primarily on a potential significant change to the Guides that would require pre-publication proof for "generally expected results" or "typicality." The Guides currently allow marketers to use testimonials that are not generally representative of what consumers can expect from the advertised product so long as the marketers clearly and conspicuously disclose either (1) what the generally expected performance would be in the depicted circumstances, or (2) the limited applicability of the depicted results to what consumers can generally expect to receive; i.e., that the depicted results are not representative or typical. The change proposed by the FTC would require all marketers to (1) conduct pre-publication proof of "generally expected results" and (2) to disclose the typical experience a consumer could expect to receive.

Jaffe stated: "This proposal raises very serious First Amendment concerns and we hope the FTC will reject this approach. As a practical matter, showing typicality for certain products and services cannot be measured, because results are based upon subjective variables associated with individual consumers. The proposed change would impose substantial burdens on marketers and could chill substantial quantities of truthful advertising. The major costs that would be imposed on advertisers if these proposals are promulgated would not further consumer protection, as the FTC already has sufficient authority under existing law and the current Guides to regulate any false or deceptive claims in the use of testimonials and endorsements."

The ANA letter was written by Anthony DiResta of the law firm of REED SMITH LLP, general counsel for the ANA.

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ANA is the industry's premier trade association dedicated exclusively to marketing and brand building. Representing more than 400 companies with 9,000 brands that collectively spend over $150 billion in marketing communications and advertising, the Association's members market products and services to consumers and businesses. ANA serves the needs of its members by providing marketing and advertising industry leadership, legislative leadership, information resources, professional development and industry-wide networking. Founded in 1910, the ANA maintains offices in New York City and Washington, D.C. More information is available at /