On Notice: Misattributed, False, or Mischaracterized Endorsements | Proskauer – Advertising Law – JDSupra – JD Supra

Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the issues of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Notice as unfair or deceptive. In particular, the FTC stated…….

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Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the issues of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Notice as unfair or deceptive. In particular, the FTC stated that:

  • It is an unfair or deceptive trade practice to make claims which represent, expressly or by implication, that a third party has endorsed a product or its performance when such third party has not in fact endorsed such product or its performance.
  • It is an unfair or deceptive trade practice for an advertiser to misrepresent that an endorsement represents the experience, views, or opinions of users or purported users of the product.”
  • It is an unfair or deceptive trade practice to misrepresent an endorser as an actual user, a current user, or a recent user of a product or service.

The FTC cited several prior decisions in support of its Notice, including:

  • Ar-Ex Cosms., Inc., 48 F.T.C. 800 (1952). The advertiser, Ar-Ex, touted that its Special Formula (Non-Permanent) Lipstick was the only lipstick recommended by third party product-testing organization, Consumers’ Research, for women who suffer from cracked, sore, dry, or chapped lips.  However, Consumers’ Research had merely noted that Ar-Ex sold lipsticks free from certain compounds­—not that it recommended the products.  The FTC therefore found the advertiser’s claim to be false and misleading.
  • J. Reynolds Tobacco Co., 46 F.T.C. 706 (1950). The FTC determined it was deceptive for the makers of Camel cigarettes to advertise using testimonials that did not accurately reflect the endorsers’ opinions. Camel recruited a number of individuals to sign off on testimonials, in exchange for compensation. But some of these individuals stated that they could not read, and the testimonials they signed off on were not read to them. Other testimonials were fabricated entirely, mischaracterized, or distorted. For example, several testimonials stated or implied the endorser was an exclusive Camel smoker, when the endorser did not smoke cigarettes at all. And some of the testimonials stated the endorser preferred Camel over all other brands when, in actuality, the endorser could not tell the difference between Camels and other cigarettes.
  • Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984). The FTC found the advertiser deceptively implied that testimonials came from current or recent product users of its “Ball-Matic” device. For example, the testimonials used language like “. . . now I get four miles more per gallon” and “now that I have installed your unit . . .” (emphasis added). In truth, the endorsements were written five to six years before the date of the advertisements – not by individuals who had currently or recently used the device.

The FTC’s Endorsement Guides are consistent with those decisions, stating that:

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