What the FTC Endorsement Guides Require of a Testimonial

The short answer

A testimonial in an advertisement is not free speech from a stranger. Under the Federal Trade Commission's Endorsement Guides, it is a message the advertiser is answerable for.

The core sentence is short. An endorsement may not convey any express or implied representation that would be deceptive if the advertiser made it directly.

So the test for a customer quote is the same test as for the headline above it. Could the company say this in its own voice and prove it? If not, putting it in quotation marks changes nothing.

What counts as an endorsement

The definition is broader than most readers expect. An endorsement is any advertising, marketing or promotional message that consumers are likely to believe reflects the opinions, beliefs, findings or experiences of someone other than the sponsoring advertiser.

That holds even when the views expressed are identical to the advertiser's own. What matters is whether the audience reads the message as coming from an outside party.

The Guides list the forms this can take. Spoken statements, tags in social media posts, demonstrations, a person's name or likeness, and the name or seal of an organization can all be endorsements.

The Commission also says it treats endorsements and testimonials identically. There is no gap between the two words for a company to stand in.

One boundary is worth knowing. A spokesperson who plainly speaks for the company, rather than from personal experience, is not an endorser, and an obviously fictional dramatization is not an endorsement either.

Four requirements that sit behind every quote

The general considerations in the Guides are compact, and each one is checkable from the outside.

First, an endorsement must reflect the honest opinions, findings, beliefs or experience of the endorser. A written testimonial that no real person holds fails at the first step.

Second, the words may be edited, but not distorted. An advertisement does not have to use the endorser's exact words unless it claims to, such as by using quotation marks. It may not present the endorsement out of context or reword it so as to distort the person's opinion or experience.

Third, opinions expire. An advertiser may keep running an expert or celebrity endorsement only so long as it has good reason to believe the endorser still subscribes to the views presented. The Guides say that belief should be refreshed at reasonable intervals. They also list what makes an interval unreasonable: new information about how the product performs, a material change to the product, changes in competitors' performance, and the advertiser's own contract commitments.

Fourth, if the advertisement says the endorser uses the product, the endorser must have been a bona fide user when the endorsement was given. The advertiser may keep running it only while it has good reason to believe that is still true.

The rule that makes a testimonial a claim

This is the part of the Guides that does the most work on a health page, and it is stated flatly.

An advertisement using consumer endorsements about how a product performs will be interpreted as representing that the product is effective for the purpose depicted. The advertiser must possess and rely upon adequate substantiation to support express and implied claims made through endorsements, including competent and reliable scientific evidence where appropriate. The standard is the same one that would apply if it had made the representation directly.

Then comes the sentence worth remembering: consumer endorsements themselves are not competent and reliable scientific evidence.

Read that against a page built entirely from customer stories. The stories are not the proof. They are the claim that has to be proven, and the proof has to sit somewhere else.

The Commission's health advertising guidance makes the same point in plainer words. It is not enough that a testimonial represents the honest opinion or experience of the endorser. The advertiser must also have appropriate scientific evidence behind the implied claim that the product works, and will work for buyers as it did for that person.

Actual consumers, actual pictures

Two smaller rules catch a large share of what goes wrong on a real page.

When an advertisement represents, expressly or by implication, that the people in it are actual consumers, it should use actual consumers in both the audio and the video. If it does not, it should clearly and conspicuously disclose that the people shown are not actual consumers of the product.

The Guides work through a staged version of this. An advertisement that appears to catch spontaneous opinions from real people conveys that these are real customers, even without naming anyone. If actors were hired, that fact should be clearly and conspicuously disclosed.

The second rule is about images. Using an endorsement with the image or likeness of someone other than the actual endorser is deceptive if it misrepresents a material attribute of the endorser.

A worked example makes the point sharp. A truthful weight-loss testimonial paired with a stock photograph of a much smaller person misrepresents the product's effectiveness, because the picture implies a change the endorser never had.

Who is on the hook

Liability under the Guides does not sit in one place, and knowing that helps explain why some brands are careful and some are not.

Advertisers are subject to liability for misleading or unsubstantiated statements made through endorsements, and for failing to disclose unexpected material connections. An advertiser can be liable for a deceptive endorsement even when the endorser is not.

The Guides tell advertisers what to do about it: give endorsers guidance, monitor their compliance, and take action sufficient to remedy and prevent problems. The Commission adds that this is not a safe harbor. Doing it well reduces the odds of an enforcement action; it does not buy immunity.

Endorsers can be liable too, including when someone falsely says they personally used a product, or makes performance claims that go beyond their own experience and were never approved by the advertiser.

Agencies, public relations firms, review brokers and reputation management companies are named as well. They may be liable for their roles in creating or disseminating deceptive endorsements, or in hiring and directing endorsers who fail to disclose.

The Guides are interpretation. Part 465 is a rule.

There are two different instruments here and it is easy to run them together.

The Endorsement Guides are administrative interpretations. They set out the general principles the Commission uses in evaluating endorsements, and they provide the basis for voluntary compliance. Practices inconsistent with them may lead to action under section 5 of the FTC Act if the Commission has reason to believe the conduct falls within what the statute declares unlawful.

The Rule on the Use of Consumer Reviews and Testimonials is different in kind. Each of its operative provisions says that the described conduct is an unfair or deceptive act or practice and a violation of the part.

That rule reaches the fake end of the market directly. It is a violation for a business to write, create or sell a consumer review or testimonial that materially misrepresents any of three things. That the reviewer exists, that the reviewer used or had experience with the product, or the reviewer's experience with it.

It is also a violation to buy a review, or to spread a testimonial about your own business, that you knew or should have known misrepresented any of those three things.

Insiders, incentives and suppression

The rule keeps going into the places a reader cannot easily see.

Paying for sentiment is out. It is a violation to provide compensation or other incentives in exchange for, or conditioned on, reviews expressing a particular sentiment, positive or negative.

Insider reviews need labels. An officer or manager who writes a review or testimonial about their own business must clearly and conspicuously disclose the material relationship. The exception is a testimonial where the relationship is already obvious to the audience. The same duty falls on the business when it spreads a testimonial by its own officers, managers, employees or agents.

A company-run review site cannot pose as independent. It is a violation to materially misrepresent that a website or entity a business controls, owns or operates provides independent reviews or opinions.

Suppression is covered too. A business may not materially misrepresent that the reviews shown on its site represent most or all of the reviews submitted, when reviews are being held back for their ratings or their negativity. The rule then lists what a site may withhold without that counting as suppression. It includes defamatory, harassing, obscene or sexually explicit content, and content that is discriminatory. The criteria have to be applied equally to everything submitted, regardless of sentiment.

The Guides add a companion point about how positive reviews are gathered. Contacting customers, then inviting only the pleased ones to post publicly, may be deceptive if the practice makes the visible reviews substantially more positive than they otherwise would have been. Inviting everyone is fine, even while hoping for praise.

What this is worth to you as a reader

You cannot audit an advertiser's evidence file from the outside. You can read a page for the shape of the claim, which is most of the skill.

Ask what the testimonial is being used to prove. If a quote is carrying a performance claim on its own, with nothing else on the page behind it, the page is resting weight on something the Commission says is not scientific evidence.

Ask whether the people are represented as actual customers, and whether anything on the page says otherwise. Then look at the photographs beside the words.

Ask whether a relationship is disclosed, and whether the disclosure sits with the endorsement or somewhere you had to go looking.

None of that tells you whether a particular advertisement broke the law. It tells you how much of what you are reading is proof and how much is atmosphere.

Where this site sits in the picture

This is a comparison site that takes affiliate commissions, so it is inside the subject it is writing about rather than above it.

The Guides address that directly. A review site that receives payments from the companies it covers, such as for affiliate referrals, should clearly and conspicuously disclose that it receives them. A site that takes payment for higher rankings is deceptive, and a disclosure does not fix it, because the payments determine the order.

The disclosure page here states the arrangement and computes the number of paid partners rather than asserting it. What that page says about placement is the part a reader should hold this site to.