FDA Guidelines on the “Results Not Typical” Gotcha


FDA Guidelines on the “Results Not Typical” Gotcha
by Chip Cooper

“Success story” testimonials have long been a staple for advertisers with their website legal forms. “I lost 12 pounds in my first month, ” and “In 3 short months I was taking in over $5,000 per month on my website…” are typical examples.

The Federal Trade Commission (FTC) in its Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R., Part 255) effective in December, 2009 placed severe restrictions on the use of the “results not typical” website legal forms disclaimers with “success story” testimonials, and failure to comply could result in significant legal liability.

The “Results Not Typical” Disclaimer

Prior to the latest Guides, websites could post “success story” testimonials that were not what most consumers would generally expect to achieve if they also provided a conspicuous “results not typical” disclaimer. The results not typical” disclaimer was considered a “safe harbor” shielding advertisers from liability for deceptive advertising.

The underlying theory was that the “results not typical” website legal forms disclaimer was sufficient to inform consumers about how unusual are atypical the advertised results might be. The latest Guides reflect the new belief by the FTC that “disclaimers of typicality” are not sufficient notices to consumers in most cases.

The FTC Eliminates The “Results Not Typical” Disclaimer?

Prior to issuing the latest Guides, the FTC conducted two consumer research studies that concluded that most consumers would interpret “success story” testimonials as being representative of what most consumers could expect to achieve. Relying on these studies, the FTC changed its posture regarding the “results not typical” disclaimer that accompanies “success story” testimonials.

Under the latest Guides, the FTC eliminated the prior “safe harbor” for the “results not typical” disclaimer. Now, advertisements that feature a consumer who provides an endorsement featuring his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect to achieve from the advertised product or service.

In addition, if you disclose the results that consumers can generally expect to achieve, you must have clinical data to substantiate your claim.

This is how the FTC put it: “If the advertiser does not have substantiation that the endorser’s experience is representative of what consumers will generally achieve, the advertisement should clearly and conspicuously disclose the generally expected performance in the depicted circumstances, and the advertiser must possess and rely on adequate substantiation for that representation.”

For example, if you post a testimonial from John Doe that says he lost over 100 pounds in a year eating your low-fat yogurt when combined with an exercise program, you must disclose the typical experience most consumers should expect, such as – “most consumers who eat our yogurt and also exercise regularly should not expect to lose over 100 pounds in a year; instead they should expect to lose only 10-15 pounds”). And, you must also be able to substantiate the 10-15 pound claim.

Conclusion

The FTC did not completely shut the door on the “results not typical” disclaimer. The FTC did not state that typicality disclaimers would always be insufficient notice to consumers; however, it’s clear that the “results not typical” disclaimer has been drastically diminished, if not effectively eliminated.
 

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