How can I tell whether a message is an endorsement?

Ask whether consumers are likely to believe the message reflects the opinions, beliefs, findings, or experiences of someone other than you as the sponsoring advertiser. Then ask whether the message can be attributed to you, since an ordinary purchaser with no connection to the manufacturer beyond buying the product is not an endorser.

Does tagging a brand in a social media post count?

A tag in a social media post can be an endorsement. The guides illustrate this with a paid golfer's social media post, which is an endorsement if viewers can readily identify the golf ball brand, either because it is apparent from the video or because it is tagged or otherwise mentioned in the post.

Is it still an endorsement if the speaker says exactly what we would say ourselves?

It is an endorsement regardless of whether the speaker's views match yours. A scripted line counts as well: when an actor reads from a script, the statement is still an endorsement if consumers are likely to believe it reflects the actor's personal views.

Is a customer's honest review of my product an endorsement?

Not when the review is an ordinary purchaser's own post or an independent-site review, because that message cannot be attributed to you. The result changes once you feature the review: when a consumer submits a review to the manufacturer's website and the manufacturer highlights it on its homepage, the review as featured is an endorsement even though there is no connection between the consumer and the manufacturer.

If I send an influencer or reviewer free product, does their post become an endorsement?

It can, because the connection lets the post be attributed to you. In the guides' dog food example, a consumer who joins a marketing program under which participants receive free products and write reviews gives an endorsement when the consumer writes a positive review of a free bag, because of the connection to the manufacturer through the program. An unsolicited review prompted by a store-wide coupon, which the manufacturer does not follow up on, is treated differently because it cannot be attributed to the manufacturer.

Does a contest that asks people to post about our product create endorsements?

It can. In the Cole Haan Pinterest contest, FTC staff believed that participants' pins featuring Cole Haan products were endorsements, and that consumers who saw the pins would not reasonably expect that the pins were incentivized by a $1000 shopping spree. Staff added that entry into a contest to receive a significant prize in exchange for endorsing a product through social media constitutes a material connection that viewers of the endorsement would not reasonably expect.

Are we responsible if influencers hired through an agency or vendor fail to disclose?

An advertiser can be responsible even when a contractor booked the influencers, because advertisers are subject to liability for failing to disclose unexpected material connections between themselves and their endorsers. That is what FTC staff told Microsoft in the Xbox One matter: as the advertiser, Microsoft bore responsibility for the influencers' failure to disclose, even though the influencers were paid through Machinima. Staff still declined to recommend enforcement, but the letter said that decision was not a determination that a violation may not have occurred.

Are endorsements and testimonials treated differently?

The Commission treats them identically for purposes of enforcing the FTC Act and the endorsement guides.

What must a business do once a message is an endorsement?

It must make sure the endorsement reflects the endorser's honest opinions, findings, beliefs, or experience and does not convey any representation that would be deceptive if the advertiser made it directly. It must also disclose, clearly and conspicuously, any connection to the endorser that might materially affect the weight or credibility of the endorsement and that the audience does not reasonably expect.

Can a private party, and not only the FTC, sue over a false claim that someone endorsed or approved a product?

A private plaintiff can bring a civil action under the Lanham Act when a use in connection with goods or services is likely to cause confusion, or to deceive, as to the origin, sponsorship, or approval of those goods or services by another person. The person who does so is liable in a civil action by any person who believes that he or she is or is likely to be damaged by the act.

If we market student loans, can our branding imply that a school endorses the loan?

Regulation Z prohibits private education loan marketing that implies a school endorses the loan, and the official interpretation treats a suggestion that the school offers or makes the loan as one form of that implied endorsement. Using the creditor's own full name, however, does not imply endorsement even if that name includes the school's name.

Social ProofTerm

Endorsement

Also known as "Testimonial"

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

The government defines “Endorsement” as “any advertising, marketing, or promotional message for a product that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser”. Source: 16 C.F.R. § 255.0 Verbal statements, tags in social media posts, demonstrations, depictions of a person's name, signature, likeness or other identifying personal characteristics, and the name or seal of an organization can be endorsements. Source: 16 C.F.R. § 255.0 The party whose views the message appears to reflect is the endorser, who could be or appear to be an individual, group, or institution. Source: 16 C.F.R. § 255.0

Key legal rules

The endorsement guides and the reviews rule set out the duties below. The orders that follow show what particular companies were required to do, and those requirements can be applied to your own marketing:

Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser, and an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser. Source: 16 C.F.R. § 255.1
An endorsement may not be presented out of context or reworded so as to distort in any way the endorser's opinion or experience with the product. Source: 16 C.F.R. § 255.1
When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user of it at the time the endorsement was given. Source: 16 C.F.R. § 255.1
An advertiser using consumer endorsements must possess and rely upon adequate substantiation, including, when appropriate, competent and reliable scientific evidence, to support express and implied claims made through them in the same manner it would have to if it had made the representation directly. Source: 16 C.F.R. § 255.2
An advertisement containing an endorsement about a consumer's experience on a central or key attribute of the product will likely be read as saying that experience is representative of what consumers will generally achieve, so if the advertiser lacks substantiation for that, the advertisement should clearly and conspicuously disclose the generally expected performance in the depicted circumstances. Source: 16 C.F.R. § 255.2
Whenever an advertisement represents, expressly or by implication, that the endorser is an expert with respect to the endorsement message, the endorser's qualifications must in fact give the endorser the expertise the endorser is represented as possessing with respect to the endorsement. Source: 16 C.F.R. § 255.3
When a connection between the endorser and the seller might materially affect the weight or credibility of the endorsement and the audience does not reasonably expect that connection, it must be disclosed clearly and conspicuously. Source: 16 C.F.R. § 255.5
Advertisers are subject to liability for misleading or unsubstantiated statements made through endorsements or for failing to disclose unexpected material connections between themselves and their endorsers. Source: 16 C.F.R. § 255.1
It is an unfair or deceptive act or practice and a violation of 16 C.F.R. Part 465 for a business to provide compensation or other incentives in exchange for, or conditioned expressly or by implication on, the writing or creation of consumer reviews expressing a particular sentiment, whether positive or negative, regarding the product, service, or business that is the subject of the review. Source: 16 C.F.R. § 465.4

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

A critic's review becomes an endorsement once a producer excerpts it in an advertisement, because readers would view it as a statement of the critic's own opinions and not those of the producer. Source: 16 C.F.R. § 255.0 The same attribution explains why a scripted line can be an endorsement: consumers are likely to believe an actor's statement reflects the actor's personal views even when the actor is reading from a script. Source: 16 C.F.R. § 255.0 The test therefore looks to what consumers are likely to believe rather than to who wrote the words, and that focus matters because, as Commissioner Chopra observed in 2020, influencer marketing can allow paid advertising to seem more authentic. Source: Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review (Feb. 12, 2020)

The definition also marks the edge of coverage. A consumer who has no connection to the manufacturer beyond being an ordinary purchaser is not an endorser, because that person's message cannot be attributed to the manufacturer. Source: 16 C.F.R. § 255.0 A paid or otherwise incentivized negative statement about a competitor's service is not an endorsement either, although such a statement can still be deceptive in violation of section 5. Source: 16 C.F.R. § 255.0

Endorsement status also matters because it is a material fact. In the Trade Union Courier matter, a hearing examiner found that an endorsement by, or relationship with, the American Federation of Labor (then abbreviated A. F. of L.) was a material fact. That connection, the examiner reasoned, would influence a prospective advertiser’s judgment, and the advertiser was entitled to accurate advice about it. Source: In re Trade Union Courier Publishing Corp. et al. (FTC), Findings of Fact

Enforcement examples

FTC Staff Closing Letter: Cole Haan, Inc. (Pinterest contest)

Closing Letter to Christie Grymes Thompson, Counsel for Cole Haan, Inc. (FTC File No. 142-3041, Mar. 20, 2014)

Cole Haan ran a Pinterest contest in which contestants made boards featuring Cole Haan shoes, and the company promised to award a $1,000 shopping spree to the contestant with the most creative entry. Source: Closing Letter to Christie Grymes Thompson, Counsel for Cole Haan, Inc. (FTC File No. 142-3041, Mar. 20, 2014) FTC staff concluded that the participants' pins featuring Cole Haan products were endorsements, and that consumers who saw the pins would not reasonably expect that the pins were incentivized by the $1000 shopping spree. Source: Closing Letter to Christie Grymes Thompson, Counsel for Cole Haan, Inc. (FTC File No. 142-3041, Mar. 20, 2014)

Outcome. Staff determined not to recommend enforcement action at that time, in part because the FTC had not previously publicly addressed whether entry into a contest is a form of material connection or whether a pin on Pinterest may constitute an endorsement. Source: Closing Letter to Christie Grymes Thompson, Counsel for Cole Haan, Inc. (FTC File No. 142-3041, Mar. 20, 2014)

United States v. Daniel Chapter One (cancer-treatment supplements)

Memorandum in Support of United States’ Motion for Preliminary Injunction; Memorandum Opinion of the United States District Court - March 31, 2015

An FTC order barred the company from making cancer-treatment claims about its supplements “including through the use of product or program names or endorsements.” Source: Memorandum in Support of United States’ Motion for Preliminary Injunction, United States v. Daniel Chapter One The United States argued that those prohibited representations were made both by the hosts of the company's radio show and by individuals who called into the show and endorsed the company's products. Source: Memorandum in Support of United States’ Motion for Preliminary Injunction, United States v. Daniel Chapter One

Outcome. The court found the company and its principals in civil contempt, concluding among other things that they had continued to violate the order by encouraging potential customers to visit websites containing publications with prohibited information and endorsements of the prohibited supplements. Source: Memorandum Opinion, Daniel Chapter One, Part I (Background) (Mar. 31, 2015)

FTC Staff Closing Letter: Microsoft Corp. and Starcom MediaVest Group (Xbox One influencer videos)

Closing Letter to Yaron Dori, counsel for Microsoft Corporation, and Amy R. Mudge, counsel for Starcom Media Vest Group (FTC File No. 142-3090, Aug. 26, 2015)

Machinima, a multi-channel network on YouTube, paid several of its network partners significant amounts of money to produce and upload Xbox One game play videos. Source: Closing Letter to Yaron Dori, counsel for Microsoft Corporation, and Amy R. Mudge, counsel for Starcom Media Vest Group (FTC File No. 142-3090, Aug. 26, 2015) Machinima did not require the influencers to disclose the compensation, and many, if not most, of them made no disclosure when the videos were uploaded. Source: Closing Letter to Yaron Dori, counsel for Microsoft Corporation, and Amy R. Mudge, counsel for Starcom Media Vest Group (FTC File No. 142-3090, Aug. 26, 2015)

Outcome. Staff wrote that payment of significant sums to video bloggers to post specific content promoting the Xbox One and Microsoft's game titles is a material connection that YouTube viewers would not reasonably expect, and that Microsoft, as the advertiser, bears responsibility for the influencers' failure to disclose it. Source: Closing Letter to Yaron Dori, counsel for Microsoft Corporation, and Amy R. Mudge, counsel for Starcom Media Vest Group (FTC File No. 142-3090, Aug. 26, 2015) Staff nonetheless determined not to recommend enforcement action at that time, reasoning that the failures appeared to be isolated incidents that occurred in spite of policies and procedures designed to prevent such lapses. Source: Closing Letter to Yaron Dori, counsel for Microsoft Corporation, and Amy R. Mudge, counsel for Starcom Media Vest Group (FTC File No. 142-3090, Aug. 26, 2015) The letter adds that the decision not to pursue enforcement is not a determination that a violation may not have occurred. Source: Closing Letter to Yaron Dori, counsel for Microsoft Corporation, and Amy R. Mudge, counsel for Starcom Media Vest Group (FTC File No. 142-3090, Aug. 26, 2015)

In re Lord & Taylor, LLC (paid Instagram influencers)

In re Lord & Taylor, LLC, Matter No. 152 3181, Analysis of Proposed Consent Order to Aid Public Comment; Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review

Lord & Taylor paid fifty social media influencers focused on fashion thousands of dollars each to post an image of themselves wearing a particular dress on Instagram or another platform. Source: Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review (Feb. 12, 2020) Its contracts required posts to include the company's Instagram handle and a specific hashtag, but did not require the influencers to disclose that they were paid. Source: Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review (Feb. 12, 2020) The FTC charged the company in 2016 with deceiving the public by failing to disclose its connections with these influencers. Source: Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review (Feb. 12, 2020)

Outcome. Part I of the proposed order prohibits Lord & Taylor, in connection with the advertising of any product or service, from misrepresenting that an endorser of such product or service is an independent user or ordinary consumer of the product or service. Source: In re Lord & Taylor, LLC, Matter No. 152 3181, Analysis of Proposed Consent Order to Aid Public Comment A Commissioner's later statement observed that the Commission settled the matter for no customer refunds, no forfeiture of ill-gotten gains, no notice to consumers, no deletion of wrongfully obtained personal data, and no findings or admission of liability. Source: Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review (Feb. 12, 2020)

In re Creaxion Corp. (mosquito repellent endorsers)

Creaxion Complaint; Creaxion Analysis of Proposed Consent Orders to Aid Public Comment; Creaxion Corporation: Decision and Order - February 8, 2019

According to the complaint, spokespersons Ms. Patterson Caldwell and Mr. Dalton posted social media endorsements of FIT Organic Mosquito Repellent under their endorsement agreements, and in numerous instances the posts did not disclose the spokespersons’ paid promotional relationships with HealthPro. Source: Creaxion Complaint (FTC) The complaint further alleged that Creaxion and the other respondents misrepresented that certain endorsements reflected the independent experiences or opinions of impartial users, and deceptively failed to disclose that certain endorsers were paid spokespersons, were reimbursed for the cost of the product, or owned or were employed by Creaxion, the public relations firm hired to promote the product. Source: In re Creaxion Corp., Analysis of Proposed Consent Orders to Aid Public Comment

Outcome. The Creaxion order prohibits any representation about a consumer or other endorser of a product or service without disclosing, clearly and conspicuously and in close proximity to that representation, any unexpected material connection between the endorser and any respondent or any other individual or entity affiliated with the product or service. Source: Creaxion Corporation: Decision and Order - February 8, 2019 It also required the respondents to give each endorser with a material connection a clear statement of the endorser's disclosure responsibilities and to obtain from each a signed and dated statement acknowledging receipt and agreeing to comply. Source: Creaxion Corporation: Decision and Order - February 8, 2019

FTC v. Teami, LLC (Instagram tea promotion)

Teami LLC: Warning Letters to Instagram Influencers to Prominently Disclose Paid Endorsements (Mar. 5, 2020)

FTC staff wrote to an influencer that she was paid by Teami to create an Instagram post endorsing its tea. Source: Teami LLC: Warning Letters to Instagram Influencers to Prominently Disclose Paid Endorsements (Mar. 5, 2020) The post carried the disclosure “#teamipartner,” but followers viewing it in their Instagram feeds could not see that disclosure unless they clicked “more.” Source: Teami LLC: Warning Letters to Instagram Influencers to Prominently Disclose Paid Endorsements (Mar. 5, 2020)

Outcome. According to the letter, a federal court complaint filed that day alleged that the post was deceptive because it lacked a clear disclosure that the influencer was paid to promote Teami products. Source: Teami LLC: Warning Letters to Instagram Influencers to Prominently Disclose Paid Endorsements (Mar. 5, 2020) The letter also warned that individual influencers who fail to make adequate disclosures about their connections to marketers are subject to legal enforcement action by the FTC. Source: Teami LLC: Warning Letters to Instagram Influencers to Prominently Disclose Paid Endorsements (Mar. 5, 2020)

In re Sunday Riley Modern Skincare, LLC (skincare reviews on Sephora)

Complaint; Decision and Order (Sunday Riley Modern Skincare, LLC); Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review

According to the complaint, Sunday Riley Skincare managers, including Respondent Sunday Riley, posted reviews of Sunday Riley brand cosmetic products on the Sephora website using fake accounts created just for that purpose, or requested that other employees do so. Source: Complaint, In re Sunday Riley Modern Skincare, LLC (FTC) A Commissioner's statement describes Sunday Riley and her company as caught ordering employees to write fake reviews on Sephora.com. Source: Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review (Feb. 12, 2020) The FTC charged Sunday Riley and her company with deceiving the public about the material connections between the company and the reviewers. Source: Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review (Feb. 12, 2020)

Outcome. The Sunday Riley order barred any misrepresentation about the status of an endorser or reviewer, including that the endorser or reviewer is an independent or ordinary user of the product. Source: In re Sunday Riley Modern Skincare, LLC, Decision and Order It also barred any representation about a consumer or other endorser without disclosing, clearly and conspicuously and in close proximity to that representation, any unexpected material connection between the endorser and any respondent or any other individual or entity affiliated with the product. Source: In re Sunday Riley Modern Skincare, LLC, Decision and Order

In re Google LLC and iHeartMedia (Pixel 4 radio endorsements)

Complaint, In re Google LLC and iHeartMedia; Google Consent (order text); iHeart-Decision-and-Order (Feb. 8, 2023)

The complaint alleged that Google paid iHeartMedia more than $2.6 million to record and broadcast advertisements featuring radio personalities endorsing the Pixel 4 phone. Source: Complaint, In re Google LLC and iHeartMedia (FTC) It further alleged that many of the personalities, using scripted first-person language, did not own or regularly use a Pixel 4 and had not used one to take pictures at night, yet the ads aired over 11,200 times between October and December 2019. Source: Complaint, In re Google LLC and iHeartMedia (FTC) Count I charged that numerous iHeartMedia radio personalities who represented that they owned or regularly used a Pixel 4 smartphone did not own or regularly use one. Source: Complaint, In re Google LLC and iHeartMedia (FTC), Count I

Outcome. The accompanying order text barred Google from misrepresenting that an Endorser has owned or used the Covered Product. Source: In re Google LLC, Google Consent (order text) The iHeartMedia order likewise barred it from misrepresenting that an endorser has owned or used the product or service, or misrepresenting an endorser's experience with it. Source: In re iHeartMedia, Inc., Decision and Order (Feb. 8, 2023)

Exposure

The endorsement guides themselves carry no direct fine: in a 2009 letter, FTC staff wrote that there is no monetary penalty for violating them. Source: Letter from Mary K. Engle, Associate Director, Division of Advertising Practices, FTC, to Randall Rothenberg, Interactive Advertising Bureau (Oct. 30, 2009) Practices inconsistent with the guides may still result in corrective action by the Commission under section 5 if, after investigation, the Commission has reason to believe the practices fall within the scope of conduct that section declares unlawful. Source: 16 C.F.R. § 255.0

When an enforcement action does follow, the money at stake can be large. In FTC v. Roca Labs, the court concluded that the defendants had deceptively failed to disclose their financial relationship to testimonialists who worked for them, along with other violations. Source: Final Judgment and Order for Permanent Injunction and Other Equitable Relief, FTC v. Roca Labs, Inc., No. 8:15-cv-2231-T-35TBM (M.D. Fla.) The court found the proper amount of equitable monetary relief against all the defendants except George C. Whiting to be $25,246,000. Source: Final Judgment and Order for Permanent Injunction and Other Equitable Relief, FTC v. Roca Labs, Inc., No. 8:15-cv-2231-T-35TBM (M.D. Fla.) In the Supple matter, an order covering expert endorsements and material-connection disclosures entered a $150,600,000 judgment against Supple and Apatow as equitable monetary relief. Source: Stipulated Final Judgment and Order for Permanent Injunction and Other Equitable Relief (Supple, LLC) Most of that judgment was suspended, however, once Supple and Apatow paid $285,000, subject to conditions. Source: Stipulated Final Judgment and Order for Permanent Injunction and Other Equitable Relief (Supple, LLC) Under the Publishing.com order, which restricts misrepresentations about endorsers and incentivized reviews, the respondents must pay $1,500,000 to the Commission. Source: In re Publishing.com, LLC, Decision and Order That order also provided that each day of nonpayment is a separate violation for which a civil penalty accrues. Source: In re Publishing.com, LLC, Decision and Order Violating an existing order that reaches endorsements can cost more still: in United States v. Daniel Chapter One, the United States asked for a final order that included injunctive relief, equitable monetary relief of $1,345,832.43, and a civil penalty award of $3,528,000, and the court granted the motion. Source: Memorandum Opinion, Daniel Chapter One, Part I (Background) (Mar. 31, 2015)

Orders also bind a business for years. The Sunday Riley order will terminate on November 6, 2040, or 20 years from the most recent date that the United States or the Commission files a complaint alleging a violation of that order, whichever comes later. Source: In re Sunday Riley Modern Skincare, LLC, Decision and Order In the Google and iHeartMedia matter, the Commission's letter to a commenter stated that each respondent would be liable for civil penalties of up to $50,120 per order violation for the order's twenty-year duration. Source: In re iHeartMedia, Inc., Decision and Order (Feb. 8, 2023) Before an order exists, the picture was different: as of Commissioner Wilson's October 2022 dissent, the Commission could not obtain civil penalties for first-time violations of Section 5 of the FTC Act. Source: Dissenting Statement of Commissioner Christine S. Wilson Regarding the Advance Notice of Proposed Rulemaking on Fake and Deceptive Reviews and Endorsements (Oct. 20, 2022) The same statement said that the Notice of Penalty Offenses the Commission issued in October 2021 may enable it to obtain civil penalties from marketers that use fake or deceptive endorsements or reviews. Source: Dissenting Statement of Commissioner Christine S. Wilson Regarding the Advance Notice of Proposed Rulemaking on Fake and Deceptive Reviews and Endorsements (Oct. 20, 2022) A separate statement by Commissioner Chopra, joined by Commissioner Slaughter, went further: it said the Commission has authority under Section 5(m)(1)(B) of the FTC Act to seek penalties against parties who engage in conduct known to have been previously condemned by the Commission, and that endorsing products without disclosing material connections was condemned decades ago. Source: Statement of Commissioner Rohit Chopra Joined by Commissioner Rebecca Kelly Slaughter

Exposure is not limited to the sponsoring company. An advertiser may be liable for a deceptive endorsement even when the endorser is not liable. Source: 16 C.F.R. § 255.1 Endorsers, for their part, may be liable for statements made in the course of their endorsements, such as when an endorser makes a representation the endorser knows or should know to be deceptive. Source: 16 C.F.R. § 255.1 Advertising agencies, public relations firms, review brokers, reputation management companies, and similar intermediaries may likewise be liable for their roles in creating or disseminating endorsements containing representations they know or should know are deceptive. Source: 16 C.F.R. § 255.1

FAQs

1.255.0. 16 C.F.R. § 255.0
2.255.0. 16 C.F.R. § 255.0
3.255.0. 16 C.F.R. § 255.0