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Comments to the FTC on Updating the Endorsement Guides

Comments to the FTC on Updating the Endorsement Guides
September 26, 2022

The Center for Data Innovation has responded to a request for comments on proposed revisions to the “Guides Concerning the Use of Endorsements and Testimonials in Advertising.” In these comments, the Center explains that impactful revisions should promote innovation, protect consumers, and capture how endorsement advertising has changed since 2009, with a focus on social media, consumer reviews, and advertising disclosures.

Summary

Deceptive endorsement advertising is common online, including on social media platforms and in consumer review websites. To protect consumers from deception in endorsements, the FTC should modernize the Guides Concerning the Use of Endorsements and Testimonials in Advertising (“the Guides”). The FTC originally published the Guides in 1980 and last amended it in 2009, before major social media platforms like Instagram and TikTok existed. Revisions should capture how endorsement advertising has changed with a focus on social media, consumer reviews, and advertising disclosures, while maintaining a focus on impactful revisions that promote innovation and protect consumers. Specifically, the FTC should take the following steps:

  1. Clarify disclosure requirements on social media in Section 255.0(f): The FTC requires endorsers make “clear and conspicuous” disclosure on social media platforms. However, the ideal methods for disclosure vary across platforms. The FTC should update the Guides to provide guidance on how to make such disclosures on all major social media platforms.
  2. Address ambiguous requirements for the disclosure of material connections in Section 255.5: The FTC proposes “that an endorser’s material connection need not to be disclosed when it is understood or expected by all but an insignificant portion of the audience” in Section 255.5. This introduces ambiguities regarding who needs to disclose material connections and when. The FTC should define, in measurable terms, when an endorser does not need to disclose a material connection, and it should provide examples that illustrate this distinction.
  3. Expand enforcement action and liability for fake review brokers: FTC should specifically name review brokers as an intermediary liable for their role in deceptive reviews in proposed Section 255.1(f).

Read the filing.

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