On July 26, 2022, the Federal Trade Commission (FTC) published a request for comments on proposed revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising.
The Guides, 16 CFR part 255, are designed to assist businesses and others in conforming their endorsement and testimonial advertising practices to the requirements of section 5 of the FTC Act. Although the Guides interpret laws administered by the Commission, and thus are advisory in nature, proceedings to enforce the requirements of law as explained in the Guides can be brought under the FTC Act. In any such proceeding, the Commission would have the burden of proving that a particular use of an endorsement or testimonial was deceptive under the law.
The Commission believes the Guides should be retained but a number of revisions are appropriate.
- Many of the proposed changes are simply clarifications or additional examples of the principles embodied in the existing Guides.
- Others enunciate basic principles not expressly set forth in the current Guides but are established in Commission enforcement actions.
- Several represent substantive changes from the current Guides, based upon increased knowledge of how consumers view endorsements and taking into consideration the comments submitted in response to the February 2020 Federal Register notice.
- Some of the new examples and updates to existing examples reflect the extent to which advertisers have turned increasingly to the use of social media and product reviews to market their products.
Comments on the proposal will be accepted through September 26, 2022.