One of the most popular strategies in direct response advertising is to find a happy customer or impressive expert who can vouch for a product’s effectiveness. But marketers need to understand what kind of claims they can -- and can’t -- make in order to stay on the right side of federal regulations.

“The starting point from an evidentiary standpoint is that an advertiser is required to have a reasonable basis for any claims,” says Peter Marinello, Director, Electronic Retailing Self-Regulation Program, an organization established by the Electronic Retailing Association and the Council of Better Business Bureaus to promote best practices and weigh in on the appropriateness of advertising claims before the Federal Trade Commission has to step in to litigate.

Marinello’s advice sounds simple: don’t make a claim that isn’t true. But there are a host of rules governing the evidence marketers must provide for their claims, as well as different standards to follow depending on the kind of testimonial or endorsement used.

Earlier this month, the FTC finished accepting public comments on potential changes to its guidelines for the use of endorsements and testimonials in advertising. In particular, the FTC appears concerned about disclaimers not being truly effective in communicating that results cited in testimonials are atypical. As a result, regulators may be considering stronger rules for disclaimers or may require advertisers to disclose generally expected performance or typical results.

Until new guidelines are established, we asked Marinello to outline the dos and don’ts involved with five common direct response advertising strategies:

-> Strategy #1. Claiming a product is “clinically proven”

“Clinically proven” is considered a hot button claim because of the weight that consumers tend to put on it. Here’s how to support the use of the phrase:

- Have at least two clinical studies that show the result you claim.
- Test the product itself, not just a single ingredient. Advertisers run into trouble when then make a claim about a product that’s really based on test results for the primary ingredient.
- Perform tests on the right subjects. If the product is aimed at a certain audience, such as men, or eldery or overweight individuals, make sure the clinical testing was performed on those subjects.
- Follow “reliable and competent” testing procedures. The FTC expects research to be conducted by professionals with expertise in the relevant areas. Some of the hallmarks of reliable and competent testing include:
o Conducted by an independent party, not in-house
o Using an appropriate number of subjects, with a randomized placebo control group
o Lasting the necessary amount of time to achieve statistically significant results with a 95% confidence level

-> Strategy #2. Before and after photographs

Offering visual evidence of a product’s effectiveness is a popular tactic, particularly with weight loss or skincare products. But to do so, follow these rules:
- Collect affidavits from photo subjects that certify the images are accurate representations of a person who used the product.
- When the results depicted in a photograph are not typical, you must provide a disclosure saying that different individuals’ results may vary. Disclosures must be clear and conspicuous, and for print or online ads, must be in close proximity to the main claim.

“We’ll see photos the main page of a Web site and then find the disclosure is four links into the site,” Marinello says. “That’s not deemed to be in close proximity.”

-> Strategy #3. Customer testimonials

The most compelling claims in an ad often are made by customers themselves. But the rule of thumb is that anything a customer says on behalf of a product is subject to the same FTC regulations as an advertiser’s claim. This means:

- Advertisers must have affidavits from customers making testimonials certifying that the product was used in the way it’s intended and that results were not attributable to other products or activities.

- Any material connection between the advertiser and the customer must be disclosed. For example, if the customer is related to or married to someone involved with the company, this must be made clear.

- Testimonials must reflect a typical scenario for the product’s use. Ads can’t highlight an extraordinary situation and imply that it is the standard and expected performance for a product. Marinello remembers a window company’s ad that recounted how a set of the company’s glass doors prevented flood water from entering a customer’s home. Although the story was true, the company did not have product testing to show that every customer could expect the same performance.

“I can’t tell you how many times I’ve brought this up to advertisers who have a great story they’re telling but no disclosure that it’s an atypical situation. They say, ‘But this actually happened,’ and that’s fine and dandy, but is it a typical situation?”

-> Strategy #4. Product demonstrations

Marketers must take care any time their ad shows a demonstration of the product’s effectiveness or a side-by-side comparison between one product and another. As with other ad techniques, the key is to make sure consumers have an accurate impression of what they’re seeing.

Here are four practices to follow for product demonstrations:

#1. The demonstration must be backed up by a test that confirms the result. A demonstration must also reflect the same conditions of test. For example, a cleaning product that was tested on ceramic tiles can’t be shown in a demo achieving the same results on another type of surface.

#2. If the product is doctored in any way, it must be disclosed. As an example, Marinello cites a car manufacturer’s ad that showed a monster truck rolling over the tops of its cars without crushing them. But the ad did not disclose that the cars were reinforced to prevent them from collapsing.

#3. Demonstrations must be clearly labeled. Even if the demonstration is based on testing, the ad can’t convey the false impression that consumers are seeing the actual test being performed.

#4. Side-by-side product demonstrations or other competitive scenarios must accurately depict how a competitor’s product performed.

-> Strategy #5. Expert endorsements

The rules regarding expert endorsements are similar to those governing customer testimonials. For starters, marketers must provide affidavits confirming the expert’s claims.

In addition, marketers must be prepared to prove that the expert is qualified to make claims about the product:
- Experts must be from a relevant field. Don’t trot out a chiropractor to endorse a smoking cessation product.
- Don’t overstate the expert’s credentials. However you label your expert, consider the public’s understanding of that title. For example, naming an endorser a “professional athlete,” when that person may have spent only a short time playing on a minor league team doesn’t match most consumers’ definition of “professional.”
- Be prepared to provide a list of credentials for expert endorsers, including experience in relevant fields of expertise and education background.


Useful links related to this article

FTC Guides Concerning Use of Endorsements and Testimonials in Advertising:
http://www.ftc.gov/bcp/guides/endorse.htm

The Effect of Consumer Testimonials and Disclosures on Ad Communication for a Dietary Supplement:
http://www.ftc.gov/reports/endorsements/study1/report.pdf

Effects of Consumer Testimonials in Weight Loss, Dietary Supplement and Business Opportunity Advertisements:
http://www.ftc.gov/reports/endorsements/study2/report.pdf

Federal Trade Commission:
http://www.ftc.gov

Electronic Retailing Self-Regulation Program:
http://www.retailing.org/new_site/govaffairs/self_reg.htm