[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR255.2]

[Page 175-176]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 255_GUIDES CONCERNING USE OF ENDORSEMENTS AND TESTIMONIALS IN 
ADVERTISING--Table of Contents
 
Sec. 255.2  Consumer endorsements.

    (a) An advertisement employing an endorsement reflecting the 
experience of an individual or a group of consumers on a central or key 
attribute of the product or service will be interpreted as representing 
that the endorser's experience is representative of what consumers will 
generally achieve with the advertised product in actual, albeit 
variable, conditions of use. Therefore, unless the advertiser possesses 
and relies upon adequate substantiation for this representation, the 
advertisement should either clearly and conspicuously disclose what the 
generally expected performance would be in the depicted circumstances or 
clearly and conspicuously disclose the limited applicability of the 
endorser's experience to what consumers may generally expect to achieve. 
The Commission's position regarding the acceptance of disclaimers or 
disclosures is described in the preamble to these Guides published in 
the Federal Register on January 18, 1980.
    (b) Advertisements presenting endorsements by what are represented, 
directly or by implication, to be ``actual consumers'' should utilize 
actual consumers, in both the audio and video or clearly and 
conspicuously disclose that the persons in such advertisements are not 
actual consumers of the advertised product.
    (c) Claims concerning the efficacy of any drug or device as defined 
in the Federal Trade Commission Act, 15 U.S.C. 55, shall not be made in 
lay endorsements unless (1) the advertiser has adequate scientific 
substantiation for such claims and (2) the claims are not inconsistent 
with any determination that has been made by the Food and Drug 
Administration with respect to the drug or device that is the subject of 
the claim.

    Guide 2, Example 1: An advertisement presents the endorsement of an 
owner of one of the advertiser's television sets. The consumer states 
that she has needed to take the set to the shop for repairs only one 
time during her 2-year period of ownership and the costs of servicing 
the set to date have been under $10.00. Unless the advertiser possesses 
and relied upon adequate substantiation for the implied claim that such 
performance reflects that which a significant proportion of consumers 
would be likely to experience, the advertiser should include a 
disclosure that either states clearly and conspicuously what the 
generally expectable performance would be or clearly and conspicuously 
informs consumers that the performance experienced by

[[Page 176]]

the endorser is not what they should expect to experience. The mere 
disclosure that ``not all consumers will get this result'' is 
insufficient because it can imply that while all consumers cannot expect 
the advertised results, a substantial number can expect them. [See the 
cross reference in Guide 2(a) regarding the acceptability of disclaimers 
or disclosures.]
    Example 2: An advertiser presents the results of a poll of consumers 
who have used the advertiser's cake mixes as well as their own recipes. 
The results purport to show that the majority believed that their 
families could not tell the difference between the advertised mix and 
their own cakes baked from scratch. Many of the consumers are actually 
pictured in the advertisement along with relevant, quoted portions of 
their statements endorsing the product. This use of the results of a 
poll or survey of consumers probably represents a promise to consumers 
that this is the typical result that ordinary consumers can expect from 
the advertiser's cake mix.
    Example 3: An advertisement purports to portray a ``hidden camera'' 
situation in a crowded cafeteria at breakfast time. A spokesperson for 
the advertiser asks a series of actual patrons of the cafeteria for 
their spontaneous, honest opinions of the advertiser's recently 
introduced breakfast cereal. Even though the words ``hidden camera'' are 
not displayed on the screen, and even though none of the actual patrons 
is specifically identified during the advertisement, the net impression 
conveyed to consumers may well be that these are actual customers, and 
not actors. If actors have been employed, this fact should be disclosed.


[Guide 2]

[45 FR 3872, Jan. 18, 1980]