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September 16th, 2001
Marketing Debacle - All About Endorsements
Sony suffered embarrassing allegations for the second time about its advertising recently, after the news media uncovered that Sony had used its employees to give an endorsement in a television commercial for one of its own films, "The Patriot."
In the commercial, people who apparently have just seen the movie are stopped in the theater lobby to give their opinions about it. According to media reports, two employees from Sony’s marketing department, who appear to be average filmgoers, are featured in the commercial without any disclosure that they are Sony employees. One of them endorses the movie, calling it a "perfect date movie."
In response to the allegations, Sony has reportedly said that it will stop the practice of using undisclosed actors or employees in its endorsement advertising.
These false advertising charges, and the public relations fiasco that resulted, could easily have been avoided. Years ago, the Federal Trade Commission issued its "Guides Concerning Use of Endorsements and Testimonials in Advertising," which basically prohibit the use of misleading endorsements and give specific guidance on how to properly use consumers' opinions in advertising.
With little effort, effective endorsement advertising can be done legally, without running afoul of the FTC's guidelines or creating public relations problems. Here are a few basic tips to keep in mind:
- Endorsements must be real. An endorsement must reflect the honest opinions, findings, beliefs, or experience of the endorser. The endorser must also be an actual user of the product or service being advertised.
- "Fake" endorsements must be disclosed. If you use a "fake" consumer endorsement in a commercial, such as an endorsement from a paid actor or a company employee, and viewers may be confused into thinking that it is a "real" consumer endorsement, then you must generally disclose the true identity of the endorser, clearly and conspicuously. Any other relevant connection between the endorser and the advertiser must also be disclosed. If the endorsement is obviously a "slice of life," and is clearly not a depiction of a real consumer, then no disclosure is likely to be necessary.
- Consumers’ opinions must be obtained without them knowing that their opinions may be used in advertising. The FTC believes that consumers will not give their honest opinions if they know that their opinions may be used in a commercial. Thus, under FTC guidelines, a consumer can only learn that his or her opinion may be used for advertising purposes after the opinion has been given. When you stand outside a movie theater with a camera, a microphone, and lights, and then ask a person whether he or she likes the film, you will generally have obtained an improper endorsement. Obtain the opinion first without any cameras or promise of fame in sight, and then take the person around the corner to give that opinion again on film. If the endorsement is obtained improperly, that fact may need to be disclosed in the commercial.
- Endorsements must be substantiated. The advertiser must be able to substantiate any factual representation made in an endorsement and must also ensure that the endorsement is not deceptive. (If the endorser says that his car can go from 0 to 60 in 7 seconds, then the advertiser must have proof for that.) The advertiser generally must also be able to substantiate that the opinion expressed reflects consumers’ typical experience. If a consumer’s experience is not typical – "I lost 100 pounds in two weeks" – then that fact may need to be disclosed.
- Obtain Endorser’s Certificates. If you use an endorsement, you should obtain a release that entitles you to use the endorsement, that attests to the fact that the views expressed are the endorser’s actual views, and that requires the endorser to inform you of any change in his or her views.
Following these simple guidelines will help producers to avoid needless embarrassment and legal hassles, as well as lost clients, in the long run.
This article first appeared in the September 2001 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
Other Published Articles
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A Red Line at Last: ABA Formal Opinion 489 (2019)
The American Bar Association’s Professional Liability Litigation Committee published Ronald C. Minkoff's article “A Red Line at Last: ABA Formal Opinion 489 (2019).” The article discusses the December 2019 Formal Opinion by the ABA Standing Committee on Ethics and Professional Responsibility prohibiting anticompetitive practices by law firms seeking to discourage partners from leaving. (Behind paywall) View Article
February 5 2020
Media Law International: Rules on Influencer Advertising and FTC’s Guidance on Disclosure
Media Law International published Hannah Taylor’s article “Rules on Influencer Advertising and FTC’s Guidance on Disclosure.” View Article
December 31 2019