In the eyes of the law

The FTC recently updated its Guide Concerning the Use of Endorsements and Testimonials in Advertising effective December 1, 2009 which concerns testimonials and endorsements on websites and blogs. Going forward, if you (or a user on your blog or website) represent results from the use of a product or service as typical when that is not the case, you will need to also disclose the results that most consumers can expect. This is different from the previous FTC Guide which allowed advertisers to use extremely positive results in a testimonial as long as they included the disclaimer such as “these results are not typical.” In addition, the revised Guide also requires that the relationship between a supplier of the product or services and the endorser to be disclosed.  For example, if a blogger recommends a product on their blog that they received for free or were paid to discuss on their blog, the blogger is required to disclose this information in the blog. Similarly, if an employee recommends a product or service on a discussion board or blog, the employee is required to disclose that he or she is employed by the manufacturer or supplier of the service. The revised Guide seems to indicate that both endorsers and advertisers could be liable under the FTC Act for statements they make in an endorsement.  This would include false or unsubstantiated statements and the failure to disclose a material connection between the advertiser and endorser.