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ANA Files Endorsement and Testimonial Comments with the FTC

June 22, 2020

As part of its ongoing systematic review of its rules and guidelines, the Federal Trade Commission (FTC) announced in February that it was seeking comments on the relevancy and efficacy of its endorsement and testimonial guides. The last update to these guides (first issued in 1980) was in 2009, and in the intervening 11 years, there has been a revolution in influencer marketing in the online social media space. The FTC asked for input on a wide range of questions concerning the guides, mainly whether they have kept up with changes in the marketplace, technology, and consumer perceptions.

ANA filed our comments today. Written by John Feldman, Keri Bruce, and Jason Gordon of ANA’s general counsel, Reed Smith LLP, our comments state our belief in the continuing need and utility of the endorsement and testimonial guides, as they provide clarity for consumers and advertisers alike. However, our comments also point out areas where the guidelines can be adapted to better reflect the changed landscape for endorsements and testimonials, especially in influencer marketing.  

Our comments argue that the FTC should provide guidance that promotes consistency in how clear and conspicuous endorsement disclosures are made across social media platforms, including encouraging and fostering the use of platform tools, as well as offering a “safe harbor” that relies on the advertising industry’s very successful self-regulatory programs through the BBB’s National Programs. We also contend that the guides should allow industry self-regulation to continue to operate in the children’s advertising space, rather than establishing special rules within the guides pertaining to children. In addition, we ask that the FTC review and clarify what “materiality” and “material connections” mean under the guides and when disclosure of such connections is required, as materiality is the basis for any finding of consumer injury under Section 5 of the FTC Act. Finally, our comments briefly touch on “review-gating,” or providing satisfied consumers the chance to write a review, and contend that disclosure in this area should not be mandated in the guides.

We are also preparing to respond to the FTC on other rules and guidelines it is reviewing in the coming months, including its Gramm-Leach-Bliley Safeguards Rule and its Health Breach Notifications Rule.

Our comments on the endorsement and testimonial guides can be read in full here.

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