FTC Endorsement Guides: What 16 CFR Part 255 Covers

The FTC's Endorsement Guides, 16 CFR Part 255, explain how section 5 of the FTC Act applies to endorsements and testimonials in advertising Source [1]. Part 255 lists its source as a rule published on July 26, 2023, and it counts tags in social media posts, demonstrations and verbal statements as possible endorsements Source [1].

This is general information, not legal advice. It is based on the current text of the Guides Source [1] and says what each part covers. If you are an influencer or run campaigns with one, start with our guide to the FTC influencer guidelines.

Each piece Autonomah creates arrives with its reason written out, so the person approving it can see why it says what it says Source [2].

What the Guides are, and what they are not

The Guides are administrative interpretations of laws the FTC enforces. They address how section 5 of the FTC Act, 15 U.S.C. 45, applies to endorsements and testimonials Source [1]. They are the basis for voluntary compliance, and practices that go against them may lead to corrective action by the Commission under section 5 if, after investigation, the Commission has reason to believe the conduct is unlawful Source [1]. Our read: they are guidance with real consequences, not a statute.

What counts as an endorsement

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, even if that person's views match the advertiser's Source [1]. The Guides treat endorsements and testimonials the same way Source [1].

A few cases from the text show the edges Source [1]:

• A customer who posts about a product they bought with their own money, with no tie to the maker, is not giving an endorsement.
• A review submitted to the maker's own site becomes an endorsement if the maker chooses to feature it on its homepage.
• A paid post that tags or shows the brand is an endorsement when viewers can readily tell which brand it is.

The seven sections at a glance

Reviews and testimonials

Section 255.2 says that in procuring, suppressing, boosting, organizing, publishing, upvoting, downvoting, reporting or editing consumer reviews, advertisers should not distort what consumers think of their products Source [1]. The examples spell out what that means Source [1]:

• A seller that hides every review below a set star rating, or every negative one, makes its product pages misleading.
• A maker that pays purchasers to write positive reviews acts deceptively even if it discloses the payment, because the payment requires a positive review.
• A maker that invites only the happiest customers to post reviews may act unfairly or deceptively if that makes the posted reviews much more positive.
• A fake positive review is not honest, because it does not come from a real user.

Sellers do not have to show reviews that are unlawful, harassing, off topic or that they reasonably believe are fake, as long as the rule is applied the same way to every review Source [1].

Typical results

A testimonial about a key result is likely to be read as typical. If the advertiser cannot show that the result is what people generally get, the ad should clearly disclose what they can generally expect Source [1]. The Guides also say that a disclaimer such as "results not typical" is unlikely to work: the Commission tested versions of it and found they did not adequately reduce the message that the result is typical Source [1].

Disclosing connections

Section 255.5 covers connections the audience would not reasonably expect, such as payment, free products or family ties, which must be disclosed clearly and conspicuously Source [1]. The Guides define "clear and conspicuous" as difficult to miss and easily understandable, and in an interactive medium such as social media the disclosure should be unavoidable Source [1]. We cover where to put it in the influencer guide.

Who can be liable

Advertisers can be liable for misleading or unsubstantiated statements made through endorsements, or for failing to disclose unexpected connections, even when the endorser is not liable Source [1]. Endorsers can be liable for statements they know or should know are deceptive Source [1]. Advertising agencies, public relations firms, review brokers and similar intermediaries can be liable for their roles too Source [1]. Advertisers should give guidance to endorsers, monitor them and fix non-compliance, though the Guides say this is not a safe harbor Source [1].

Before a review, quote or tagged post goes out, the checks are the ones in the sections above: an honest opinion, a disclosed connection, and the typical-results test, which a "results not typical" label does not pass. Autonomah records who decided and when on every piece, whether the team approved it, requested a change or rejected it Source [2].

How Autonomah does it

Autonomah is an artificial creative and advertising brain that thinks, creates and publishes each brand's advertising Source [2]. It creates texts, images, carousels and videos with the brand's identity and the format of each network Source [2]. After approval, a piece is published on its campaign date; read the review step on its home page.

Frequently asked questions

Are the FTC Endorsement Guides a law?

They are administrative interpretations of section 5 of the FTC Act, not a statute. Practices that go against them may lead to corrective action under section 5 after an investigation Source [1].

Do the Guides apply to consumer reviews?

Yes, in two ways. A consumer review the advertiser chooses to feature can be an endorsement Source [1]. Separately, the Guides say that advertisers should not distort reviews of their products, whether or not the reviews count as endorsements Source [1].

Is "results not typical" enough?

The Guides say it is unlikely to be effective. They describe the Commission's testing of such disclaimers and say the disclaimers did not adequately reduce the message that the results are typical Source [1].