Federal Trade Commission's plan to change rules on ad endorsements, testimonials worries marketers

Consumers lured by advertisements promising rock-hard abs, sparkling white teeth and bulging bank accounts soon may get a reality check.
Updated guidelines on ad endorsements and testimonials under final review by the Federal Trade Commission—and widely expected to be adopted—would end marketers' ability to talk up the extreme benefits of products while carrying disclaimers like "results not typical" or "individual results may vary."

Instead, companies would be allowed to tout extreme results only if they also spelled out typical outcomes.

"For a good part of the last decade, we have noticed a problem, particularly with consumer testimonials," said Richard Cleland, assistant director of the FTC's division of advertising practices. "The use of consumer testimonials had become almost a safe harbor for companies as long as they threw in some sort of disclaimer about results not being typical."

The changes are sending shudders through companies that worry about their ability to motivate consumers to buy their products if they can't sell the sizzle.

"There would never be another Jared," said Julie Coons, president and chief executive of the marketing trade group Electronic Retailing Association, referring to Jared Fogle, who became Subway's spokesman after losing 245 pounds eating the chain's sandwiches and exercising. "We're all going to have to regroup" if the proposals stand.

Fogle's story is highlighted on Subway's Web site, accompanied by an asterisk and the text, "Their results are not typical. Your loss, if any, will vary."

"This is not something we are prepared to comment on at this point," a spokesman for Subway said of the proposed guidelines.

The tougher rules, the first update to the guidelines since 1980, are designed to make it easier for consumers to judge the credibility of marketers' claims. The changes would affect all forms of advertising and marketing, including blogs and company Web sites. The FTC could bring legal action against firms that don't comply.

The final guidelines are expected to be issued later this year.

The revisions have drawn sharp criticism from product manufacturers, advertising agencies and trade groups who say it is the "aspirational" theme of their ads that motivates consumers to purchase their goods. Show less than the ultimate achievement, they say, and consumers are less likely to buy.

What's more, they say, it's impossible to determine typical results for many personal-care products because of unique physiological characteristics among humans and the varying levels of effort put into any endeavor.

"A lightbulb, I can give you a typical result," said Jonathan Gelfand, general counsel for Product Partners LLC, which sells fitness programs, gear and nutritional supplements under the "Beach Body" brand.

"Showing what people start and end with and saying very prominently, 'Results may vary,' that is as true as you can make it," Gelfand said. "If we can't show a picture and give results, what are we going to do?"

He added, "Someone who can't fit in an airline seat is not going to pick up the phone for a 10-pound weight change."

A spokeswoman for weight-loss program provider Jenny Craig Inc.—whose celebrity endorsers have included Kirstie Alley, Valerie Bertinelli and most recently Phylicia Rashad—said it would be premature to comment on the guidelines.

Competitor NutriSystem Inc., which has been touted by Marie Osmond and whose Web site showcases a woman who lost 40 pounds, did not respond to calls for comment.

The Federal Trade Commission is reviewing new guidelines to product endorsements. They include:

•Consumer testimonials would have to be substantiated and ads would have to include generally expected results. Endorsers, not just advertisers, could be held liable for deceptive claims. "You'd have to say not only is it extreme, but how extreme is it," the FTC's Richard Cleland said.

•Celebrities who talk up a product in an interview must disclose if they are getting paid for the promotion. Celebrities who endorse products would have to disclose if they have an ownership interest.

•Expert endorsers, like doctors, must have experience in the product area they are endorsing. If they don't, the limits of their expertise must be stated. For instance, an ophthalmologist identified only as a doctor could not be portrayed as an expert physician endorsing a hearing aid.

•Bloggers who get free products and then endorse them on their blogs would have to make it clear they got the products free.

—Mary Ellen Podmolik