CAMLAW: Complementary and Alternative Medicine Law Blog

You can be liable for a blogger's enthusiasm

FTC rules regarding testimonials and endorsements can make you liable as an advertiser for false and misleading claims made by someone who describes your product on a blog.

These FTC rules show why it's important to have a qualified attorney review your legal situation, including your website and any disclaimers that may be necessary.

The FTC notes:

A skin care products advertiser participates in a blog advertising service. The
service matches up advertisers with bloggers who will promote the advertiser’s products on
their personal blogs. The advertiser requests that a blogger try a new body lotion and write
a review of the product on her blog. Although the advertiser does not make any specific
claims about the lotion’s ability to cure skin conditions and the blogger does not ask the
advertiser whether there is substantiation for the claim, in her review the blogger writes
that the lotion cures eczema and recommends the product to her blog readers who suffer
from this condition. The advertiser is subject to liability for misleading or unsubstantiated
The Commission tested the communication o 1 f advertisements containing testimonials
that clearly and prominently disclosed either “Results not typical” or the stronger “These
testimonials are based on the experiences of a few people and you are not likely to have similar results.” Neither disclosure adequately reduced the communication that the experiences depicted are generally representative. Based upon this research, the Commission believes that similar disclaimers regarding the limited applicability of an endorser’s experience to what consumers may generally expect to achieve are unlikely to be effective.

Nonetheless, the Commission cannot rule out the possibility that a strong disclaimer of
typicality could be effective in the context of a particular advertisement. Although the
Commission would have the burden of proof in a law enforcement action, the Commission notes that an advertiser possessing reliable empirical testing demonstrating that the net impression of its advertisement with such a disclaimer is non-deceptive will avoid the risk of the initiation of such an action in the first instance. representations made through the blogger’s endorsement. The blogger also is subject to liability for misleading or unsubstantiated representations made in the course of her endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously that she is being paid for her services.

That's the strange truth about Federal Trade Commission rules regarding false, misleading and deceptive advertising.

The FTC publishes its Guides Concerning the Use of Endorsements and Testimonials in Advertising online. Our lawyers frequently do website review for FTC compliance and give legal advice to many new businesses seeking website user agreements, disclaimers, privacy policies, and legal advice.

It's better to steer clear of trouble ahead of time than incur a potentially large fine down the road.

To assess your healthcare legal and regulatory issues, contact the Michael H. Cohen Law Group.  Our healthcare and FDA legal team counsels health and wellness products and technologies, practices, and ventures, that accelerate health and healing.

Michael H CohenMichael H Cohen
The Los Angeles / San Francisco / Bay Area-based Michael H Cohen Law Group provides healthcare legal and FDA legal & regulatory counsel to health & wellness practices and ventures, including health technology companies (medical devices to wearable health and nanotech), healthcare facilities (from medical centers to medical spas), and healthcare service providers (from physicians to psychologists).Our legal team offers expertise in corporate & transactional, healthcare regulatory & compliance, and healthcare litigation and dispute resolution, in cutting-edge areas such as anti-aging and functional medicine, telemedicine and m-health, and concierge medicine.Our Founder, attorney Michael H. Cohen, is an author, speaker on healthcare law and FDA law, and internationally-recognized thought leader in the trillion-dollar health & wellness industry.
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