PUBLISHED SEPTEMBER 2013
by Steve Gillen, Lawyer, Wood Herron & Evans
Endorsements are good for business. We know this intuitively. And a 2012 article in the Journal of Advertising Research confirms it empirically in a report on a study of more than 300 endorsement deals over nearly two decades, which found that endorsements resulted in an average 4 percent increase in weekly sales of the endorsed products.
But unscrupulous advertisers know it too. So the Federal Trade Commission has made it a practice to monitor and police the use of endorsements and testimonials, and since 1980 it has published and periodically updated guidelines for their use.
The basic principles are constant and straightforward:
- Endorsements must reflect the honest opinion or experience of the endorser.
- An endorsement may not convey to customers an express or implied claim that would be deceptive if made directly by the advertiser.
- Any connection between the endorser and the seller of the product that might affect the weight or credibility of the endorsement must be fully disclosed.
As advertising methods and media have changed over time, the application of these principles has become more complex. What follows looks at how they are applied in several contemporary contexts. But first understand that “ad” in this context doesn’t mean just a display advertisement or a 15-second audio or video spot. Any laudatory or promotional message about a product or service, whatever the context, form, or medium, is an advertisement for purposes of deceptiveness/fairness scrutiny. A product claim in the copy on your home page or in a blog is an ad for these purposes.
An ad on your Website or copy on the cover of your book or other promotional material that features a reader crediting accomplishment to your book needs to be true, substantiated, and typical.
The reader must have read and acted on the advice in your book. Any claims made by the reader will be evaluated as if you had made them directly, so you have to be able to substantiate each claim. To do that, you will need competent and reliable scientific evidence, which reader testimonials themselves do not constitute.
Also, the claims made by the reader must be typical of what other readers will achieve, and you must have substantiation for this, or, if you don’t, you must clearly and conspicuously disclose the generally expected result in the circumstances depicted.
There was a time when the disclaimer “Results not typical” was considered adequate for this purpose, but no more. The FTC now believes such disclaimers to be ineffective and it has amended its guidelines to require an express, affirmative disclosure of what is typical.
Claims related to health or financial benefits are especially likely to draw close scrutiny.
For example, if the back-cover copy of your new diet book features before-and-after pictures of a reader with the claim that the reader lost 100 pounds in 100 days following the regimen prescribed in the book, the back-cover copy must conspicuously disclose what the average reader accomplishes, unless this reader’s experience is typical.
Similarly, if a banner on the front cover of your new book on drugless treatments for depression claims that a particular reader experienced a complete recovery through a six-week program of simple exercise, you’d better have scientifically reliable substantiation that this is typically an achievable result for your readers.
If promotional copy on your Website, cover, or anywhere else includes an endorsement by someone who would be perceived to be an expert (in the example above, perhaps a medical doctor or nutritionist), then the endorser must in fact have those credentials, and the endorser’s claims about the book must be based on an actual, professionally competent evaluation or test.
In the case of an expert, because this person is a professional in the business of providing expertise and advice for compensation, the FTC assumes that your readers will assume that the expert was paid by you. This represents a material connection that, if it wasn’t obvious, would have to be affirmatively disclosed, since it would likely influence the credibility your readers assign to the endorsement. Such connections are not always obvious, however, as is sometimes the case with bloggers.
Bloggers’ Reviews and Endorsements
If a blogger buys your book and reviews it online, you are not responsible for what the blogger says. But if you pay a blogger to review or plug your book, or if you provide the blogger with free copies or with other perks with the understanding that the blogger will promote the book, then there is a material connection between you and the blogger that will affect the credibility of the review in the eyes of consumers, and this relationship must be clearly and conspicuously disclosed.
No special language is required as long as consumers get the information they need to decide how much weight to give the review or comment. It might be as simple as “[Publisher’s name] gave me a free copy of this book to preview [or a gift in return for reviewing] this book, and . . . ”
When you compensate a blogger, anything the blogger says will be attributed to you, so the blogger cannot say anything about the book that you couldn’t say yourself. This means the blogger cannot make claims you can’t already substantiate.
Both you and the blogger will be held responsible for a failure to make a necessary disclosure, even if you did not exercise any control over what the blogger said. And the FTC has advised that when enforcement actions are necessary, they will focus on the advertiser, meaning, for these purposes, the publisher as the source of what’s being advertised, not on the blogger.
Accordingly, if you offer cash, a free copy, or some other gift to a blogger in exchange for writing about your book in a blog post, make the offer in writing and be sure to require two things in the same document: that the blogger must disclose having received compensation for the writeup, and that the blogger cannot make any claims about results achieved upon reading the book without first clearing them with you.
Glowing blurbs culled from reviews presumably don’t mislead consumers, who generally understand them as superlatives isolated from context. But that is not the case with longer reviews left by reviewers who are presumed, but not always justifiably, to be independent. Amazon recently purged thousands of reviews from its site because of reviewers’ suspected connections to or financial interests in the books reviewed, the authors, the publishers, or competing books.
If reviewers who are not objective post positively slanted reviews on their own initiative, you might do nothing about them. But don’t solicit this behavior, because if it is detected, the reviews will be taken down; and if it isn’t you will be exposed to claims for initiating the deception. When slanted reviews are unfavorable and you are aware of a conflict of interest, you can, of course, complain and get them taken down yourself.
Disclosures and Disclaimers
When you are required to make a disclosure or disclaimer, it must be clear and conspicuous. This has always meant avoiding legalese and mouse type, but it takes on additional complexity in the often pithy world of social media.
Proximity and placement are critical. A disclosure should be located next to the claim it relates to, and it should be of equal prominence, with comparable type size, weight, and color; if the claim is a flashing animation, then the disclaimer better flash, too.
Readers should not have to scroll to find your disclosure, but if the disclosure is so lengthy or otherwise difficult to place next to the claim that they do have to scroll, then you must use proximate text or visual cues to encourage scrolling. A vague “See details below” will not suffice. “See below for conditions on your right to return your purchase for refund” would likely pass muster.
If scrolling is necessary, the disclosure should be unavoidable (i.e., the reader should not be able to proceed with a transaction without scrolling through the disclosure).
Hyperlinking to a disclosure is generally not good enough, especially for books with health or safety information, and you should never hyperlink just a single word, a short phrase, or a subtle icon. Instead, if you must link to a disclosure, make the link obvious; label it to ensure that the reader understands both its relevance and its importance; place it as close to the relevant claim as possible; and make it take readers to the disclosure immediately.
Also make sure that your disclosure will be conspicuous in your promotional messages across all platforms (including small-screen and mobile devices). A tweet, with its 140-character limitation, has its own special challenges. If your endorser is paid to tweet about your book, the endorser’s tweets must disclose the connection. A hashtag such as “#paid ad” uses only eight characters and would probably be effective for this purpose.
It’s no excuse to say that a mode of social media will not reasonably accommodate a disclosure. The FTC has taken the position that if any given method of reaching your audience cannot deliver the entire, nondeceptive message, then it shouldn’t be used at all.
The Commercial Speech Caution
Until 2009, the FTC reviewed book advertisements under what it termed the Mirror Image Doctrine—that is, ads that quoted or mirrored the contents of the book or that merely expressed the opinion of the author were thought to be shielded from government regulation by the First Amendment.
But in 2009, after a series of court decisions tightening controls over commercial speech, the FTC abandoned its Mirror Image Doctrine. So now, while what is in your books is insulated from government editors by the free speech and press provisions of the First Amendment, messages you use to promote or sell your book (on the back cover or in other promotional copy or on your Website or even on a blog influenced but not operated by you) constitute commercial speech. This means they enjoy only very narrow protection at best, and no protection at all if they are deemed unfair or deceptive.
In other words, you need to be aware that the law draws a line between editorial and advertising material, and you need to understand the rules that apply on each side of it.
Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans and has focused his practice on publishing and media matters for 30 years. He is a member of IBPA and a frequent contributor to the Independent.