About a year ago, a client with a very successful infomercial called us because one of his best weight loss testimonials had disapproved of the before and after photographs of her in the show - saying that the pictures had been altered to exaggerate her change in appearance - and the client was concerned that she would go to the press with her allegations.
More recently, the distributor of another well-known infomercial got a call from one of the tabloids. A weight loss testimonial in that infomercial had told the newspaper he had really lost all that weight by undergoing surgery, not by using the advertised product. Even worse, he claimed that he had told the star of the infomercial the truth, but was told to keep quiet.
Test the validity of testimonials
Let’s face it - testimonials have been known to exaggerate their enthusiasm in order to get on TV. But it’s one thing to gush about how much you like a product, and quite another to lie about how much weight you lost - or fail to mention that you not only used the advertised product to lose weight, but also had liposuction or wired your jaws together.
The more dramatic a testimonial is, the more background checking you need to do. Be skeptical. Ask him or her to provide documentation of his or her experience, or witnesses who will attest to his or her success. If someone sends you a handwritten letter, have your attorney work the facts into a detailed affidavit for him or her to sign - but keep the handwritten letter in your files.
And be prepared for the worst. If a reporter calls you one day and says he has proof that one of your testimonials wasn’t truthful, you may have to cut your losses by quickly editing all traces of that person out of your advertising.
Deliver on Your Promises
Last year, the Federal Trade Commission (FTC) hit seven Internet retailers with $1.5 million in fines for making holiday delivery promises they couldn’t keep, or violating the Mail and Telephone Order Rule (MTOR) in other ways.
A few months ago, the FTC staff conducted a "surf’ of more than 200 online retailing sites searching for shipment promises made to entice consumers to their sites this holiday season. About half of these sites made "quick-ship" claims, promising consumers to ship in-stock items within 24 to 48 hours after an order is placed. No doubt, some of those companies will end up writing a check to Uncle Sam.
There are a lot of misconceptions out there about the MTOR - which is often referred to as the "30-day rule." For example, some electronic retailers accept orders even when in doubt about when they will be able to ship products, figuring all they have to do is send out a postcard to a customer to buy some time.
But the MTOR requires that you have a "reasonable basis" for stating that a product can be shipped within a certain time. FTC staff attorneys operating with the benefit of 20/20 hindsight may end up determining whether your decision to keep taking orders even though you didn’t have a warehouse full of product was reasonable. And remember this: If you can’t ship on time, you must notify the consumer of the delay (and give them a chance to cancel) before the advertised delivery date passes.
Most importantly, be honest and back up your promises in all aspects of your campaign.