Ad Groups Urge FTC To Rethink Proposed Revisions To Endorsement Guides

Ad organizations are objecting to key provisions of the Federal Trade Commission's proposed updated guidance regarding testimonials -- including a new definition of the term “endorsement” that suggests “tags” can in themselves be endorsements.

“Tags should not automatically be considered endorsements,” the Association of National Advertisers said in an 18-page letter sent to the agency on Monday. “The FTC should retain the idea that there needs to be an advertiser sponsoring the message in order for there to be an endorsement.”

The comments come in response to the FTC's recently proposed revisions to its guide to endorsements and testimonials -- last updated in 2009.

Among other changes, the agency proposed re-defining endorsement broadly enough to encompass tags.

“When a social media user tags a brand in a post, it generally communicates that the poster uses or likes the brand, so, the revised definition would also indicate that tags in social media posts can be endorsements,” the agency wrote in a statement accompanying the proposed guidance.



The Association of National Advertisers objects to that conclusion, writing: “The Guides should help determine what makes an advertising statement an 'endorsement,' and should not imply that certain features of social media advertising (e.g., tags) are per se endorsements.”

The advertising organization took issue with several other proposed revisions to the endorsement guides, including a new definition of the phrase “clear and conspicuous.”

While the FTC has long said that disclosures must be “clear and conspicuous,” the agency previously took the position that a disclosure met that standard if consumers “notice it, read it, and understand it.”

The new proposed definition would specify that clear and conspicuous disclosures are “difficult to miss ... and easily understandable by ordinary consumers,” the agency says.

The FTC also says the new definition also would “give specific guidance with respect to visual and audible disclosures, stress the importance of 'unavoidability' when the communication involves social media or the Internet.”

The FTC adds that its new guidance would provide that audible ad claims should come with audible disclosures, while visual and audible claims should come with visual and audible disclosures.

The Association of National Advertisers objects to that degree of specificity, arguing that people are likely to interpret those provisions as “quasi-rules” -- such as “influencers on YouTube must always disclose orally if a material connection exists between the influencer and sponsoring advertiser.”

The group writes: “That is not how the FTC has traditionally applied the 'clear and conspicuous' performance standard.

The Interactive Advertising Bureau also objected to the proposed new definition of “clear and conspicuous.”

That group writes in comments filed Monday that a requirement for "unavoidable" disclosures “would appear to create 'notice gates' -- in effect requiring consumers to confront disclosures before accessing the underlying content -- across the digital medium.”

“The mere fact that an advertisement is delivered online does not necessitate such a 'notice gate,'” the Interactive Advertising Bureau writes.

“We do not believe that an intrusive disclosure standard for advertisements delivered online is needed,” the group argues.

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