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

Continuing our sequence on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this publish considers the problems of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Notice as unfair or misleading. In specific, the FTC acknowledged that:

It is an unfair or misleading commerce follow to make claims which symbolize, expressly or by implication, {that a} third social gathering has endorsed a product or its efficiency when such third social gathering has not actually endorsed such product or its efficiency.
It is an unfair or misleading commerce follow for an advertiser to misrepresent that an endorsement represents the expertise, views, or opinions of customers or purported customers of the product.”

It is an unfair or misleading commerce follow to misrepresent an endorser as an precise person, a present person, or a latest person of a product or service.

The FTC cited a number of prior selections in help of its Notice, together with:

Ar-Ex Cosms., Inc., 48 F.T.C. 800 (1952). The advertiser, Ar-Ex, touted that its Special Formula (Non-Permanent) Lipstick was the one lipstick beneficial by third social gathering product-testing group, Consumers’ Research, for ladies that suffer from cracked, sore, dry, or chapped lips.  However, Consumers’ Research had merely famous that Ar-Ex bought lipsticks free from sure compounds­—not that it beneficial the merchandise.  The FTC due to this fact discovered the advertiser’s declare to be false and deceptive.
J. Reynolds Tobacco Co., 46 F.T.C. 706 (1950). The FTC decided it was misleading for the makers of Camel cigarettes to promote utilizing testimonials that didn’t precisely replicate the endorsers’ opinions. Camel recruited various people to log off on testimonials, in change for compensation. But a few of these people acknowledged that they might not learn, and the testimonials they signed off on weren’t learn to them. Other testimonials have been fabricated totally, mischaracterized, or distorted. For instance, a number of testimonials acknowledged or implied the endorser was an unique Camel smoker, when the endorser didn’t smoke cigarettes in any respect. And a number of the testimonials acknowledged the endorser most popular Camel over all different manufacturers when, surely, the endorser couldn’t inform the distinction between Camels and different cigarettes.
Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984). The FTC discovered the advertiser deceptively implied that testimonials got here from present or latest product customers of its “Ball-Matic” machine. For instance, the testimonials used language like “. . . now I get 4 miles extra per gallon” and “now that I’ve put in your unit . . .” (emphasis added). In fact, the endorsements have been written 5 to 6 years earlier than the date of the commercials – not by people who had at the moment or just lately used the machine.

The FTC’s Endorsement Guides are in step with these selections, stating that:

“Endorsements should replicate the sincere opinions, findings, beliefs, or expertise of the endorser.” 16 CFR § 255.1(1).  Therefore, in an effort to make a declare {that a} third social gathering endorses your product or its efficiency, the third social gathering should really endorse the product or its efficiency.
“When the commercial represents that the endorser makes use of the endorsed product, the endorser will need to have been a bona fide person of it on the time the endorsement was given. Additionally, the advertiser could proceed to run the commercial solely as long as it has good purpose to consider that the endorser stays a bona fide person of the product.” 16 CFR § 255.1(c).
“Advertisements presenting endorsements by what are represented, immediately or by implication, to be ‘precise customers’ ought to make the most of precise customers in each the audio and video, or clearly and conspicuously disclose that the individuals in such commercials are usually not precise customers of the marketed product.” 16 CFR § 255.2(c).

Allegations of misattributed, false, or mischaracterized endorsements have made headlines in recent times, as manufacturers have tried to capitalize on the worth of superstar endorsements. This usually arises when a star or public determine is noticed utilizing an advertiser’s product. For instance, when then President Barack Obama was photographed sporting a Weatherproof jacket on a visit to China, Weatherproof turned this {photograph} right into a billboard in Times Square. A White House aide publicly responded, stating “[t]his advert is clearly deceptive as a result of the corporate suggests the approval or endorsement of the president or the White House that it doesn’t have.” Weatherproof voluntarily agreed to take down the billboard.

Similarly, when actress Katherine Heigl was photographed carrying Duane Reade purchasing luggage, the pharmacy Tweeted the picture, with the caption “Love a fast #DuaneReade run? Even @KatieHeigl can’t resist purchasing #NYC’s favourite drugstore.” In response, Katherine Heigl filed go well with within the Southern District of New York, alleging violations of the Lanham Act, New York state unfair competitors regulation, and the fitting of publicity. Heigl’s grievance sought $6 million in damages, although the events later reached a settlement, the phrases of which weren’t disclosed.

In extra excessive circumstances, manufacturers have confronted allegations that they fabricated superstar endorsements out of complete fabric. For instance, in early 2020, Tom Hanks spoke out in opposition to an advert for CBD merchandise that featured a photograph of the actor, alongside a quote he mentioned was falsely attributed to him. Calling it a “false and intentional hoax,” Hanks acknowledged “I’ve by no means mentioned this and would by no means make such an endorsement.” Celebrity physician Dr. Oz was featured in the identical adverts, and re-Tweeted Hanks’s message, including “[t]his is a faux and deceptive commercial meant to make the most of customers utilizing false claims and our likenesses illegally.”

With the rise of influencer advertising, endorsements from celebrities and different public figures are extra precious than ever earlier than. Advertisers must be cautious to convey any superstar or influencer endorsements in a method that’s trustworthy to the endorser’s opinion and message – significantly now that the FTC’s Notice of Penalty Offenses has recognized this as an space of focus for the FTC.

These parts of the Notice of Penalty Offenses are additionally of specific significance for advertisers who use shopper endorsements or evaluations of their promoting. For instance, if a tv business depicts paid actors relatively than precise product customers, this must be clearly and conspicuously disclosed. See 16 CFR § 255.2, Example 6. And if a shopper showing in an commercial says one thing or is portrayed in a fashion that means the patron is a present or latest product person, the advertiser ought to periodically confirm that continues to be true, or else discontinue its use of that endorsement after an inexpensive period of time. Advertisers who quote shopper evaluations of their promoting must also take steps to verify that every such shopper really purchased and used the product, and will maintain data to that impact. See, e.g., Function Inc. (Shampoo and Conditioner), NAD SWIFT Case #6938 (February 2021) (cautioning that “advertisers utilizing shopper evaluations of their promoting ought to keep a document of evaluations to exhibit that every evaluation represents an individual that has used the product”).

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