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Heads Up, Marlo Thomas: FTC is Planning New Rules on Ad Testimonials, Endorsements

Gienna Shaw, for HealthLeaders Media, April 8, 2009

Testimonials are a staple in healthcare marketing efforts. But what if, along with the success stories, you had to disclose not-so-rosy outcomes? It would sure diminish the impact of the woman talking about the difference in her life after bariatric surgery, or the man who talks about how a surgeon saved his life. After all, not everyone loses a dramatic amount of weight after bariatric surgery and not every patient survives surgery.

The FTC is putting the finishing touches on a plan to strengthen rules about testimonials and celebrity endorsements, two popular tactics in healthcare marketing. And merely saying "results not typical" won't cover healthcare marketers under the new guidelines.

The FTC's proposed revisions cover consumer endorsements, expert endorsements, and endorsements by organizations. They also require disclosure of material connections between advertisers and endorsers, according to the FTC.

"On the issue of consumer endorsements, the . . . revisions state that testimonials that do not describe typical consumer experiences should be accompanied by clear and conspicuous disclosure of the results consumers can generally expect to achieve from the advertised product or program."

Consider the long-running St. Jude Children's Research hospital campaign, which features both celebrity endorsements and stories about the young patients the hospital has helped.

Celebrity television spots have featured Marlo Thomas, Jennifer Aniston, Jimmy Smits, Ray Romano, Robin Williams, and Bernie Mac since 2004. Long before that, the organization raised money and awareness with concerts featuring luminaries Frank Sinatra, Dean Martin, Elvis Presley, Sammy Davis Jr., Dinah Shore, and Jack Benny.

It's hard to imagine one of those touching ads ending with a long legal disclaimer à la drug company direct-to-consumer ads.

The final guidelines are expected to be issued later this year. Additional guidelines from the text of the Federal Register notice include the following:

  • Determining whether a speaker's statement is an endorsement depends solely on whether consumers believe that it represents the endorser's own view. Whether the person making the statement is speaking from a script, or giving the endorsement in his or her words, is irrelevant to the determination.
  • An advertisement employing endorsements by one or more consumers about the performance of a product or service will be interpreted as a representation that the product or service is effective for the purpose represented in the endorsement. Consumer endorsements convey not only that the advertised product or service worked for the consumers depicted in the advertisement, but also that it will work for others.
  • Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Endorsers may also be subject to liability for their statements..
  • Advertisers who use bloggers to promote their organization, and the bloggers themselves, face potential liability.
  • An advertiser who uses consumer endorsements must possess and rely upon adequate substantiation to support efficacy claims made through endorsements, just as the advertiser would be required to do if it had made the representation directly.
  • Consumer endorsements themselves do not constitute competent and reliable scientific evidence; anecdotal evidence about the individual experience of consumers is not sufficient to substantiate claims requiring scientific evidence. Even if those experiences are genuine, they may be attributable to a placebo effect or other factors unrelated to the advertised product or service, according to the FTC.

Gienna Shaw is an editor with HealthLeaders magazine. She can be reached at gshaw@healthleadersmedia.com.

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