Venable partner Jeff Knowles is quoted in an October 1, 2009 Inside Counsel story about the FTC’s revision of its false advertising guidelines for the first time in almost 30 years. The Commission is overhauling the guidelines to combat a flood of false advertising claims and testimonials made via online advertisements as well as the explosion of fraudulent environmental product claims known in the industry as “greenwashing.”
Under the proposed guides, companies must support any testimonial claim with proof that the testimonial reflects a typical result. This means that advertisers can no longer fall back on the "Results not typical" disclaimer to avoid false advertising claims.
Not only would this clarify for consumers what their anticipated results might be, it would also undermine the proliferation of false testimonials appearing on Web sites, says Knowles.
"In some cases, [the FTC] is finding evidence that marketers are making up fictitious people and fictitious results and disseminating the claims all over the Internet," he says.
While the guidelines would help root out fabricated testimonials, they also would seriously encumber honest advertisers, Knowles says. The trouble with clarifying typical results is that it’s impossible to identify a single average outcome, particularly when it comes to weight-loss products, he says. Results often vary based on a person’s age, height, weight, gender and fitness level.
"If marketers want to show extraordinary results, they’re going to have to do a study, and it might even have to be a clinical study that could cost hundreds of thousands of dollars, to show what the average loss would be," Knowles says.