I. Introduction
The Federal Trade Commission's revised Guides Concerning the
Use of Endorsements and Testimonials in Advertising (the "FTC
Guides" or "Guides")1 went into effect on
December 1, 2009. Last updated in 1980,2 the FTC Guides
were revised to address a number of issues, including: the growing
use of "word of mouth" advertising on social media
(nonexistent in 1980); the recent research regarding the lack of
effectiveness of "results not typical" disclaimers; and a
perceived need to clarify disclosures of material connections
between advertisers and endorsers.3
The impact of the FTC Guides on promotional activities using
digital media has been widely discussed in both traditional and
digital media.4 (Digital media include all media that
are broadcast using digital data, e.g., the Web, cell
phones, and other interactive media including social media such as
Twitter and Facebook.5) Although the FTC's position
is that advertising activities in digital media have always been
under its jurisdiction and subject to the same standards and
regulations as advertising in traditional media, the FTC Guides now
leave no doubt that the FTC intends to regulate advertising in
digital media. It has been made clear that the FTC Guides reach
speakers previously considered by some to be outside of the
FTC's jurisdiction, e.g., third-party bloggers and
participants in "word of mouth" advertising. And over the
past six months, advertisers have begun to modify their promotional
activities to comply with the FTC Guides.
In both traditional and digital media, prior to December 2009, the
FTC Guides provided a "safe harbor" for aspirational
testimonials—endorsements by individuals who experience
exceptional results using a product6—when
these statements were accompanied by a disclaimer of typicality,
e.g., "results not typical" disclaimers.
Disclaimers of typicality have been particularly prevalent in
dietary supplement and weight-loss program advertisements. The FTC
expressed concern that recent research indicated that consumers pay
little attention to such disclaimers and expect to achieve similar
exceptional results as touted in the aspirational endorsements. The
revised FTC Guides eliminate the safe harbor of disclaimers of
typicality and require advertisers to disclose average or expected
results. Many advertisers who once relied upon such testimonials
have added disclosures as to how the individuals achieved those
exceptional results and/or disclosures of the expected results for
a typical consumer (see Section IV.A).7
Another notable change is that the FTC Guides now mandate the
disclosure of material connections between advertisers and
endorsers, including celebrity and expert endorsers. Advertisements
increasingly include disclosures that endorsers have been
compensated for their appearances.8
This White Paper discusses the changes instituted by the FTC Guides
and responses to those changes.
II. Scope of the FTC9
The FTC regulates advertising activities within the U.S. and
also advertising from outside the United States targeting U.S.
consumers.10 The FTC is not authorized to regulate
advertising activities in other countries.11 The FTC
will focus on compliance of advertising materials dated on or after
December 1, 2009, as the FTC Guides are not intended retroactively
to affect material dated prior to December 1, 2009. Where a past
and now-noncompliant advertisement is in a clearly dated document
such as a press release or copyrighted case study, those materials
are not required to be re-edited to comply with the current FTC
Guides. However, continued use of pre‑December 1, 2009,
noncompliant advertising materials after that date may provoke
action by the FTC.12
Additionally, the FTC has posted a video series of Mary Engle,
Associate Director of the Bureau of Consumer Protection. Associate
Director Engle explains that while the FTC does not intend to
target bloggers in enforcement actions, it did revise the FTC
Guides in order "to make it clear that everybody should be
playing by the same rules, whether you're a professional
reviewer or an amateur reviewer."13 Further, the
FTC has stated that it concentrates on cases that can affect
consumers' health or safety such as deceptive health claims of
foods or over-the-counter drugs.14 Of the 15 actions
initiated by the National Advertising Division ("NAD")
and/or the Council for Responsible Nutrition15 since
December 1, 2009, 13 involved health claims of food and dietary
supplements.16 At least one of these complaints also
involved the improper use of a disclaimer of
typicality.17 However, competitors and others such as
consumer interest groups can also bring complaints before the
NAD.
III. Endorsements
A. Defining Endorsements
The FTC defines an "endorsement" as "any
advertising message (including verbal statements, demonstrations,
or depictions of the name, signature, likeness or other identifying
personal characteristics of an individual or the name or seal of an
organization) that consumers are likely to believe reflects the
opinions, beliefs, findings, or experiences of a party other than
the advertiser, even if the views expressed by that party are
identical to those of the advertiser."18 The FTC
defines the "endorser" to be the "party whose
opinions, beliefs, findings, or experience the message appears to
reflect and may be an individual, group, or
institution."19 Accordingly, an endorser could
include a celebrity, an organization, a third-party blogger, or a
participant in a word-of-mouth advertising campaign. Whether a
party is determined to be an endorser of the product depends upon
whether there is a material connection between the party and the
advertiser.
A consumer who purchases a product and writes an unsolicited review
of the product would not be considered to be an endorser under the
FTC Guides.20 If the advertiser has a material
connection to the individual who makes statements about the
advertiser or its products and services, the FTC considers the
statement to be sponsored by the advertiser, i.e., an
endorsement, and therefore an advertisement.21 The FTC
analyzes statements in the following way:
whether, viewed objectively, the relationship between the
advertiser and the speaker is such that the speaker's statement
can be considered "sponsored" by the advertiser and
therefore an "advertising message." In other words, in
disseminating positive statements about a product or service, is
the speaker: (1) acting solely independently, in which case there
is no endorsement, or (2) acting on behalf of the advertiser or its
agent, such that the speaker's statement is an
"endorsement" that is part of an overall marketing
campaign?22
In its analysis of whether a statement is an endorsement, the FTC may consider, among other facts, the following:
- whether the speaker is compensated by the advertiser or its agent;
- whether the product or service in question was provided for free by the advertiser;
- the terms of any agreement;
- the length of the relationship;
- the previous receipt of products or services from the same or similar advertisers or the likelihood of future receipt of such products or services; and
- the value of the items or services received.23
The FTC specifically observes that a statement may still be considered an endorsement and within the FTC's oversight even if an advertiser has no control over a specific statement made via digital media such as blogs or Twitter.24
B. Requirement of Disclosure of Material Connections
Providing incentives for an individual or entity to make an endorsement—e.g., a free product or reward or an opportunity to appear on television—creates a material connection between the endorser and the advertiser. A material connection must be clearly and conspicuously disclosed by the endorser. One example of a material connection requiring disclosure would be a company providing a free product to a blogger for a review because the blogger has wide readership within a particular demographic.25 Although the FTC has stated that the revisions were not intended to provide grounds for the FTC to sue bloggers,26 there has been substantial media coverage regarding blogger compliance.27 Additionally, in the competitive environment of the blogosphere for reader traffic, bloggers, like traditional advertising competitors, may police compliance by reporting violations of the FTC Guides to the NAD.
Disclosure examples: "Individuals are remunerated."28
"Participants received compensation."29
The advertiser is responsible for informing the endorser to
disclose his/her connection to the advertiser. (The advertiser must
also train and monitor third-party endorsers for compliance to the
FTC Guides. See infra Section E below.)
If the advertiser uses the statements of individuals who have
received compensation for participation in pilot studies or other
advertiser-sponsored tests, studies, or focus groups, then the
advertiser must also disclose that the individuals were compensated
for evaluating the product or service.30 Even when the
endorser is posting to an advertiser-sponsored site or forum, the
endorser is still required to make the disclosure of his/her
connection to the advertiser.
C. Use of Celebrity
Endorsements31
Celebrity endorsers are subject to the same regulations as any
other endorser of a product or service, i.e.,
"endorsers may also be subject to liability for their
statements." Even when the celebrity's endorsement is
clearly a scripted endorsement, the FTC requires that the endorsing
celebrity have a good faith belief in the truth of the
endorsement.32 In support of its position of liability,
the FTC points out that a celebrity who chooses to accept payment
for his/her endorsement must accept the potential liability for
that endorsement activity—that the endorsing statements
"reflect [her/her] honest opinions, findings, beliefs, or
experience."33 A celebrity endorsing a product or a
service in a forum that is not clearly an advertisement,
e.g., during an interview, must disclose any existing
material connection between the celebrity and the advertiser. If
the celebrity makes no representation about the product or service,
then no disclosure is required. As with other endorsers, a
celebrity endorser must make reasonable efforts to understand that
his/her assertions are truthful and accurate.34
D. Additional Requirements for Endorsement
Use35
The FTC Guides require endorsements to "reflect the honest
opinions, findings, beliefs, or experiences of the
endorser."36 An endorsement cannot make any express
or implied representation that would be deceptive if the same
representation were made directly by the advertiser. The FTC can
impose liability on both the advertiser and the endorser
for such deceptive representations.37 See infra
Section V.
When the advertisement represents that the endorser uses the
endorsed product, the endorser must have been an actual user of the
product at the time the endorsement was given. The advertiser can
run the advertisement using the endorsement only as long as it has
good reason to believe that the endorser remains an actual user of
the product.38 If an endorser is not an actual user of
the endorsed product, then the advertiser must clearly and
conspicuously disclose that the person in the advertisement is not
an actual consumer of the product unless the advertisement is
obviously a fictional dramatization.39
E. Training and Monitoring of Endorsers
If the advertiser utilizes individuals on social media to make
statements on behalf of the advertiser, then the advertiser is also
required to provide those endorsers with guidelines and training to
comply with FTC regulations and other laws (such as fair use and
false advertising).40 The advertiser's guidelines
and training should include instructions on the proper use of the
advertiser's trademarks, brands, and logos, and respect of
copyright and other intellectual property. The advertiser is
required to implement a monitoring and enforcement policy for the
statements made by the endorser.41
IV. Other Advertising Activities
A. Advertising with Performance Claims
A performance claim is a representation, implied or express, that
use of a product will yield specific results.42
1. Elimination of "Disclaimer of Typicality" Safe
Harbor
For advertising with performance claims, the FTC has eliminated the
safe harbor of disclaimers of typicality, e.g., the
"results not typical" disclaimer. Prior to the revision
of the FTC Guides, an advertiser could present an account of
exceptional results from product use and avoid false advertising
liability with a disclaimer of typicality, e.g.,
"results not typical." The FTC Guides eliminate this safe
harbor from false advertising claims and now require specific
substantiation of performance claims made in an
advertisement.43 In response to this change in the FTC
Guides, there has been an increase in advertisers adding
disclosures of expected or average results. See
supra Section I & n.6 and infra Sections
2-3.
2. Requirement of Substantiation for Performance
Claims44
The FTC Guides require the substantiation of a performance claim
whether the claim is made directly by the advertiser or by an
endorser.45 The substantiation requirement also applies
to statements made on digital media. Both express and implied
performance claims must be substantiated.
The advertiser must have valid scientific evidence of the validity
of the performance claim. An advertisement using endorsements by
one or more consumers about the performance of an advertised
product or service will be interpreted as representing that the
product or service is effective for the purpose depicted in the
advertisement and requires substantiation. However, the FTC does
not consider the results experienced by one or a few consumers to
be competent and reliable scientific evidence for the basis of
supporting a performance or result claim.46 As an
example, for weight-loss programs, the exceptional weight loss
results of a few consumers are not reliable scientific evidence of
the expected weight loss of the typical consumer. Companies have
added disclosures of the typical expected results. The Jenny
Craig® weight loss program includes the following
disclosure: "Clients following our program on average lose 1-2
pounds per week."47 The Nutrisystem®
weight loss program has a disclosure: "On Nutrisystem, you can
expect to lose at least 1-2 pounds per
week."48
The FTC Guides provide an example of an endorsement in which the
endorser "clearly described the limited and truly exceptional
circumstances under which she achieved her results," as an
example of an ad that is not likely to mislead consumers and does
not require a disclosure of expected results.49 An
informal review of advertisements since the FTC Guides came into
effect suggests that many advertisers who had previously relied
upon disclaimers of typicality are now using these detailed
descriptions of the endorser's method of achieving results to
meet the FTC's requirements. Again, endorsers of the Jenny
Craig® and Nutrisystem® weight-loss
programs often include specifics as to how they obtained their
exceptional weight loss results.50
3. Disclosure of Generally Expected
Results51
Statements about expected results must either reflect generally
expected results or be accompanied by clear and conspicuous
disclosures of what the generally expected results would be in the
advertisement's depicted circumstances. The disclosure of
generally expected results is required if the statements (a) convey
to consumers that the speaker's results are
"representative of what consumers will generally achieve with
the advertised product or service in actual, albeit variable,
conditions for use"; and (b) describe a claim for which the
advertiser does not have adequate substantiation.52 If
(a) and (b) apply, then the disclosure example would be, "The
generally expected performance in the depicted circumstances is [
]." The FTC chose the term "generally expected
results" rather than "average" because the
disclosure does not have to be based on the precise mathematical
average of users of the product, such as might be developed from a
valid survey of actual users.53
If the advertiser does not have the information to determine the
generally expected results in the depicted circumstances of an
endorsement, then the advertiser should not explicitly or
implicitly make a performance claim. Instead, the advertiser may
rely on statements of general endorsement: The FTC suggests
"I've tried many products, and this was the
best."54
4. Commissioned Research Disclosure
If the advertiser commissions research by a third party, then any
advertisement mentioning the research results must also disclose
clearly and conspicuously that the advertiser funded the
research.55
Disclosure example: "[The
advertiser] sponsored this research."
B. Advertising Involving
Experts56
1. Expert Endorsements
An expert is "an individual, group, or institution possessing,
as a result of experience, study, or training, knowledge of a
particular subject, which knowledge is superior to what ordinary
individuals generally acquire."57 The determination
of whether an advertisement contains an expert endorsement depends
on the direct or implied representation made by the endorser to the
consumer in the message. The analytical framework is whether the
consumer would understand the endorsement to be a statement of the
expert's use of the advertiser's product as a client or as
an expert.58
2. Use of an Expert Endorsement
When an advertisement represents, directly or implicitly, that the
endorser is an expert with respect to the endorsement message, then
the endorser's qualification must in fact give the endorser the
expertise that he/she is represented as possessing with respect to
the endorsement.59
In endorsing a product, an expert may consider factors not within
his/her area of expertise, but the endorsement must be supported by
the exercise of the expert's expertise in evaluating the
product features. Furthermore, those evaluated features must be
relevant to an ordinary consumer's use of or experience with
the product and be available to the ordinary consumer. The
expert's evaluation must have included an evaluation of the
product at least as extensive as someone with the equivalent level
of expertise would employ to draw similar
conclusions.60
The same substantiation requirements as described in Section A.2
above apply to expert endorsements. If the advertisement implies
that the expert's endorsement was based on a comparison to
competitor's product, the expert must have conducted such a
comparison during the evaluation.61 In making the
comparison, the expert should have determined that the endorsed
product was at least generally equivalent to the competitor's
products. The expert also should have compared the relevant product
features available to the ordinary consumer.62 When the
overall impression created by the expert endorsement is that the
endorsed product is superior to competing products with respect to
such features, then the expert using his expertise must have found
such superiority.63
C. Advertising Involving
Organizations64
An organization's endorsement must be reached by a
"process sufficient to ensure that the endorsement fairly
reflects the collective judgment of the
organization."65 If an organization is represented
as being an expert, then it must use an expert or experts
recognized by the organization or standards previously adopted by
the organization and suitable for judging the relative merits of
the endorsed products.66 Where the organization is an
expert endorser, the FTC Guides for expert endorsements also apply
to the organization's endorsements (see Section
IV.B).
As with other endorsers, if the organization has any material
connection to the advertiser, then its statement is an endorsement
and therefore an advertisement.67 Providing an
incentive, such as an opportunity to promote the organization,
creates a material connection that requires disclosure. If the
organization makes statements promoting the advertiser or its
products, the organization must disclose its material connection to
the advertiser in a clear and conspicuous disclosure.
Disclosure examples: "[Organization]
received a discount from the advertiser to review
[product]."
"[Advertiser] is providing me with an opportunity to speak
about [Organization]."
As with other third-party endorsements, it is the advertiser's
responsibility to inform the organization that it must clearly and
conspicuously disclose its connection to the
advertiser.68 This disclosure must be made even if the
statement is made on an advertiser-sponsored site.69
Likewise, the advertiser may use the endorsement as long as the
advertiser has good reason to believe that the organization still
subscribes to the views being presented.70
V. Liability
The FTC Guides impose liability on both the endorser and advertiser
for any false, misleading, disparaging, or unsubstantiated
statements made in the course of the endorsement. Although the FTC
recognizes that the advertiser may have little or no control over
consumer-generated content such as a blog post, the FTC considers
that the advertiser chose to sponsor the content and establish the
material connection between itself and the endorser and therefore
should also be responsible for the endorser's false or
misleading statements.71 The advertiser is also subject
to liability for the endorser's failure to disclose material
connections between the advertiser and the endorser. Additionally,
the advertiser must implement procedures to monitor endorsements
and to stop continued publication of deceptive statements in an
endorsement once the statements are discovered.72
Advertisers police compliance to the FTC Guides by alerting the FTC
of violations by competitors. These claims of violations are
frequently heard by the NAD, which can refer matters to the FTC
when advertisers do not participate in the proceedings or do not
abide by the NAD's decisions. False advertising claims can also
be brought by competitors in federal district court under the
Lanham Act or in state court under the state's respective
consumer protection laws. The penalties for violations of the FTC
Guides depend on the nature of the violation.73 The
remedies that the FTC and the courts have imposed include the
following:
- cease-and-desist orders—legally binding orders that require the company to stop running the deceptive advertisement, to have substantiation for claims in future advertisements, to report periodically to FTC staff about substantiation for claims in new advertisements, and to pay a fine of $16,000 per day per advertisement if the company violates the law in the future;
- civil penalties, consumer redress, and other monetary remedies; and
- corrective advertising, disclosures, and other informational remedies.
VI. Conclusion
The effects of the revisions of the FTC Guides can already be seen
in advertisements of weight loss, dietary supplement, and
pharmaceutical products. As compliance grows with the
aforementioned product categories, it is likely and expected that
the FTC will turn its attention to other product and service
categories that affect the health and safety of the American
public. It is also likely that companies will add the revised FTC
Guides to their "arsenal" when challenging
competitors' advertising statements in the context of either
claims before district courts or advertising challenges before the
NAD.
Footnotes
1. Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. pt. 255 (2009).
2. Guides Concerning the Use of Endorsements and Testimonials in Advertising, 74 Fed. Reg. 53,124, 53,124 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255).
3. FTC Publishes Final Guides Governing Endorsements, Testimonials, at http://www.ftc.gov/opa/2009/10/endortest.shtm (last modified October 29, 2009).
4. See, e.g., Stephanie Clifford, "Notice Those Ads on Blogs? Regulators Do, Too," The New York Times, Aug. 11, 2009; Ian Paul, "FTC's New Rules for Bloggers: A Quick Guide," PCWorld, Oct. 6, 2009.
5. Guides Concerning the Use of Endorsements and Testimonials in Advertising, 74 Fed. Reg. 53,124, 53,125 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255) (noting in its review of comments regarding the Guides that the FTC will have oversight over statements made via these new media despite "the advertiser's limited control over the messages disseminated to the public" via these new media).
6. The term "product" "includes any product, service, company or industry." 16 C.F.R. pt. 255.0(d) (2009).
7. For example, Nutrisystem®'s celebrity endorsements are now accompanied by the expected weight loss for a typical person using the program, available at http://www.nutrisystem.com/ (last visited July 22, 2010). Jenny Craig®'s endorsements also have a similar disclaimer for the expected weight loss for a typical person using the program, available at http://www.jennycraig.com/ (last visited July 22, 2010).
8. See, e.g., Activia® yogurt's "Take the Activia Challenge" commercials, available at http://activiachallenge.com/Home.aspx/Testimonials (disclosing "Participants received compensation.") (last visited July 22, 2010).
9. 16 C.F.R. pts. 255.0–255.1 (2009).
10. See Prepared Statement of the Federal Trade Commission Alternative Hormone Replacement Therapy Product Before the Senate Special Committee on Aging, 2007 FTC LEXIS 38, at *11-17 (Apr. 19, 2007).
11. See, e.g., In re Telebrands, Corp., No. 9313, 2004 FTC LEXIS 43 (Feb. 25, 2004) (observing that the FTC Act does not apply extraterritorially).
12. Telephone interview with Shira D. Modell, Attorney, Division of Advertising Practices, Bureau of Consumer Protection, U.S. Fed'l Trade Comm'n, Washington D.C., 20580 (Oct. 29, 2009).
13. Mary Engle, Associate Director of Bureau, Consumer Protection, U.S. Fed'l Trade Comm'n, About the Endorsement Guides, available at http://www.ftc.gov/multimedia/video/business/endorsement-guides.shtm (last visited July 22, 2010); see also Guides Concerning the Use of Endorsements and Testimonials in Advertising, 74 Fed. Reg. 53,124, 53,134 n. 79 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255) ("As with traditional media, the Commission's law enforcement activities will continue to focus on advertisers."); The FTC's Revised Endorsement Guides: What People are Asking, at 2, U.S. Fed'l Trade Comm'n (June 2010), available at http://www.ftc.gov/bcp/edu/pubs/business/adv/bus71.pdf ("We're not monitoring bloggers and we have no plans to.").
14. See Frequently Asked Questions: Answers for Small Businesses, at 7, U.S. Fed'l Trade Comm'n, available at http://www.ftc.gov/bcp/edu/pubs/business/adv/bus35.pdf (Apr. 2001) (response to "How does the FTC decide what cases to bring") (last visited July 22, 2010); see, e.g., In re Nestlé HealthCare Nutrition, Inc., No. 092 3087, available at http://www.ftc.gov/os/caselist/0923087/index.shtm (May 18, 2010) (To resolve the FTC-administrative complaint, the proposed consent order requires Nestlé to refrain from making the challenged health claims regarding BOOST Kid Essentials children's beverage until the claims were substantiated by "at least two adequate and well-designed human clinical studies of the product.").
15. The National Advertising Division of the Council of Better Business Bureaus is a private, self-regulatory group. It investigates complaints of false or deceptive advertising and gives advertisers a means for resolving disputes voluntarily and outside of the federal or state courts. When an advertiser fails to comply with NAD determinations, the NAD may refer the case to the FTC for further action. See generally National Advertising Division, www.nadreview.org.
16. Telephone interview with Shira D. Modell, Attorney, Division of Advertising Practices, Bureau of Consumer Protection, U.S. Fed'l Trade Comm'n, Washington D.C., 20580 (Oct. 29, 2009).
17. Lifes2good Natural Healthcare, Case No. 5136, National Advertising Division (Jan. 13, 2010).
18. 16 C.F.R. pt. 255.0(b) (2009).
19. Id.
20. 74 Fed. Reg. 53,124, 53,126 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255).
21. 16 C.F.R. pt. 255.5 (2009).
22. Guides Concerning the Use of Endorsements and Testimonials in Advertising, 74 Fed. Reg. 53,124, 53,126 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255).
23. Id.
24. Id.
25. Id.
26. Mary Engle, Associate Director, Bureau of Consumer Protection, U.S. Fed'l Trade Comm'n, Is the FTC Planning To Sue Bloggers?, http://www.ftc.gov/multimedia/video/business/endorsement-guides/endorse_mary-q5.shtm (last visited July 22, 2010) ("Is the FTC planning to sue bloggers? Well, let me put it this way. That is not why we issued this guidance. We issued this guidance to make it clear that everybody should be playing by the same rules, whether you're a professional reviewer or an amateur reviewer.").
27. See, e.g., Tricia Romano, "Look What I Bought (or Got Free)," The New York Times, May 5, 2010, http://www.nytimes.com/2010/05/06/fashion/06skin.html?ref=fashion#.
28. Nutrisystem® weight loss program, at http://www.nutrisystem.com/jsps_hmr/success_stories/index.jsp?weightLoss=20 (last visited July 22, 2010).
29. Activia® "Take the Activia Challenge" commercials, at http://activiachallenge.com/Home.aspx/Testimonials (last visited July 22, 2010).
30. 74 Fed. Reg. 53,124, 53,126 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255).
31. 16 C.F.R. pt. 255.2 Example 4 (2009); 74 Fed. Reg. 53,124, 53,127-29 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255).
32. 74 Fed. Reg. 53,124, 53,128 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255).
33. Id.
34. Id.
35. 16 C.F.R. pt. 255.5 (2009).
36. Id. pt. 255.1(a) (2009).
37. Id. pts. 255.1(d), 255.5 (2009).
38. Id. pts. 255.1(b)-(c) (2009) (outlining that an advertiser may satisfy the "good reason to believe" requirement by "securing the endorser's views at reasonable times where reasonableness will be determined by such factors as new information on the performance or effectiveness of the product, a material alteration in the product, changes in the performance of the competitors' products, and the advertiser's contract commitments.").
39. Id. pt. 255.0 Example 2 (2009).
40. See, e.g., Social Media Goverance's Online Database of Social Media Policies, http://socialmediagovernance.com/policies.php (last visited July 15, 2010) (database of 138 social media policies).
41. 16 C.F.R. pt. 255.5 & Example 7 (2009); see also The FTC's Revised Endorsement Guides: What People are Asking, at 6, Bureau of Consumer Protection, U.S. Fed'l Trade Comm'n, (June 2010), available at http://www.ftc.gov/bcp/edu/pubs/business/adv/bus71.pdf (noting that the scope of the monitoring program "depends on the risk that deceptive practices by . . . participants could cause consumer harm—either physical injury or financial loss.").
42. Id. pt. 255.2 (2009).
43. Id. pt. 255.2(b) & n. 1 (2009).
44. Id. pt. 255.2(a) (2009).
45. Id.
46. Id.
47. Jenny Craig® weight loss program, http://www.jennycraig.com/, (last visited July 22, 2010).
48. Nutrisystem® weight loss program, at http://www.nutrisystem.com/, (last visited July 22, 2010).
49. 16 C.F.R. pt. 255.2 Example 4 (2009).
50. See, e.g., George Z. Lost 25 lbs., http://www.nutrisystem.com/jsps_hmr/success_stories/success_story.jsp?id=23800194&weightLoss=20 (last visited July 22, 2010); Russel's success story, http://www.jennycraig.com/successstories/details/437/ (last visited July 22, 2010).
51. 16 C.F.R. pt. 255.2(b) (2009).
52. Id.
53. Id. pt. 255.5 Example 1 (2009).
54. 74 Fed. Reg. 53,124, 53,132 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255).
55. 16 C.F.R. pt. 255.5 Example 1 (2009).
56. Id. pt. 255.3 (2009).
57. Id. pt. 255.0(e) (2009).
58. Id.
59. Id. pt. 255.3(a) (2009).
60. Id. pt. 255.3(b) (2009).
61. Id.
62. Id.
63. Id.
64. Id. pt. 255.4 (2009).
65. Id.
66. Id.
67. Id.
68. 16 C.F.R. pt. 255.1(d) (2009).
69. 16 C.F.R. pts. 255.4 & Example, 255.5 & Example 1 (2009).
70. 16 C.F.R. pt. 255.1(c) (2009).
71. 74 Fed. Reg. 53,124, 53,127 (Oct. 15, 2009) (codified at 16 C.F.R. pt. 255).
72. The FTC's Revised Endorsement Guides: What People are Asking, at 6, Bureau of Consumer Protection, U.S. Fed'l Trade Comm'n, (June 2010) (providing the core elements of monitoring programs for advertisers using social media marketing and noting that it would be "unlikely that the activity of a rogue blogger would be the basis of a law enforcement action" if the company had a reasonable training and monitoring program.).
73. Advertising and Marketing on the Internet: Rules of the Road, Bureau of Consumer Protection, U.S. Fed'l Trade Comm'n, (2000).
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