1. Mini Law Lesson
(Public Service Announcement on)
Testimonials and Endorsements
Brian Heidelberger
bheidelb@winston.com
Twitter @briheidelberger
www.winston.com/bheidelberger

2. IMPORTANT DISCLAIMER
• I am not your attorney.
• This is not legal advice.
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3. Why Do We Need Refresher
Course?
• Recent FTC action against major agency
• Assistant AE sent an agency-wide email to staff
to Tweet about client’s product
 "This is sick . . . See the new Major Game
System in action. The gaming
#GameChanger“
• Agency employees tweeted on personal
accounts
• Failed to notify employees of their
obligation to disclose relationship
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4. FTC Guides Concerning
Endorsements and Testimonials
• Apply when both are present:
 “Endorsement”
• Opinion which is not the advertiser’s
 “Sponsored Advertising Message”
• “material connection” between person speaking
and advertiser
– Money
– Free stuff
– Contest entries
– Employee of advertiser or its agency
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5. FTC Examples of When Disclosure
Is Required
1) Bloggers who get free stuff
2) Employees who write reviews for their company’s
products
3) “Street team” members who get points/prizes for
talking about products
4) Actors “cast” to appear in ads as real consumers
5) Real people who are aware that they will be appear in
ad or be paid if they say something positive about
product/service
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6. Training Required
• Info re product/service touted
• Obligation to give honest opinion
• Obligation to disclose connection
• Monitoring
• Takedown
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7. FTC Thought Disclosure Was
Required
• Ann Taylor
 Invited bloggers to event and gave
free stuff
• Hyundai
 Invited bloggers to event asked them
to link to commercial and gave them
gift certificates
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8. FTC Brings Action Against PR
Agency
• Posted reviews of client’s video games
• Did not disclose that they were hired
to promote the games

9. FTC Brought Action re Failure to
Disclose in Affiliate Program
• Used advertising affiliates to promote guitar
courses
• Endorsements were written as consumers
without disclosing paid commission
• $250,000 Settlement

10. FTC Brings Action Against
Home Security Company
• National family and safety expert known
as “The Safety Mom” appeared on
media touting home monitoring system
• FTC believed :
 Company represented the person was
independent;
 Failed to disclose connection; and
 Failed to correct misleading impression
• Investigation Included PR Agency
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11. NY AG Fined Company for
“Fake” Testimonials
$300,000 Penalty
for Using “Fake”
Testimonial
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12. Company Fined for Making Up
“Fake” Testimonials (cont.)
$300,000
Penalty
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Having second thoughts? You won’t
be sorry, just go for it! I feel and
look great.

13. FTC Says Disclosure Must be
Easily Understood

14. FTC Says Disclosure Can’t Be At
End of Long Post

15. FTC Says Disclosure Must be
in Same Tweet

16. FTC Says Disclosure Must
Clearly Indicate “Connection”
“#ContestEntry”
NOT
“#ContestName”

17. Reminder of Obligations
• Info re product/service touted
• Obligation to give honest opinion
• Obligation to disclose connection
• Monitoring
• Takedown
• Conduct training for employees (or at
least send an email)
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18. How Does A Company
Disclose?
• #sponsored
• #ad
• #XZYemployee
• #XZYadagency
• #XYZcontestentry
• Disclosure should be “clear and
conspicuous” and in conjunction with
claim
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19. What’s Not Ok?
• Not disclosing
• Disclosing in bio
• #spon
• #ee
• #genericstatement
• Posing as a consumer
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20. youtube.com/adage
or
Youtube.com/brianheidelberger
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21. Twitter
@BriHeidelberger
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