In a previous blog, we discussed the Federal Trade Commission’s (“FTC”) proposed changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”). The Endorsement Guides are intended to help businesses ensure that their endorsement and testimonial advertising conforms with Section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce,” including false advertising. We specifically highlighted the FTC’s proposed changes related to social media platforms and their users, deceptive endorsements by online “influencers,” businesses’ use of consumer reviews, and the impact of advertising on children. Now, approximately one year later, and after receiving and considering public comments on its proposed changes, the FTC has issued its final rule adopting revisions to the Endorsement Guides. See Guides Concerning the Use of Endorsements and Testimonials in Advertising, 88 Fed. Reg. 48092 (July 26, 2023) (to be codified at 16 C.F.R. pt. 255). In issuing its final revised Endorsement Guides, the FTC stated that the changes are intended to “reflect the ways advertisers now reach consumers to promote products and services, including through social media and reviews.” We summarize below the FTC’s final revisions to the same sections of the Endorsement Guides covered in our earlier blog.Revised Definition of “Endorsement”The FTC proposed changing the Endorsement Guide’s definition of “endorsement” to make clear that social media user tags and other similar types of communications might constitute “endorsements.” The new definition of “endorsement” is as follows:For purposes of this part, an “endorsement” means 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 spon

In a previousblog, we discussed the Federal Trade Commission’s (“FTC”) proposed changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”). The Endorsement Guides are intended to help businesses ensure that their endorsement and testimonial advertising conforms with Section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce,” including false advertising. We specifically highlighted the FTC’sproposed changesrelated to social media platforms and their users, deceptive endorsements by online “influencers,” businesses’ use of consumer reviews, and the impact of advertising on children. Now, approximately one year later, and after receiving and considering public comments on its proposed changes, the FTC has issued itsfinal ruleadopting revisions to the Endorsement Guides.See Guides Concerning the Use of Endorsements and Testimonials in Advertising, 88 Fed. Reg. 48092 (July 26, 2023) (to be codified at 16 C.F.R. pt. 255). In issuing its final revised Endorsement Guides, the FTCstatedthat the changes are intended to “reflect the ways advertisers now reach consumers to promote products and services, including through social media and reviews.” We summarize below the FTC’s final revisions to the same sections of the Endorsement Guides covered in our earlier blog.Revised Definition of “Endorsement”The FTC proposed changing the Endorsement Guide’s definition of “endorsement” to make clear that social media user tags and other similar types of communications might constitute “endorsements.” The new definition of “endorsement” is as follows:For purposes of this part, an “endorsement” means 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 sponso

ct) (15 USC § 53(b)) where there is no specific violation of a rule. The FTC states the Final Rule would allow it to pursue civil penalties for companies violating the above regulations under Section 19(a)(1) (15 USC § 57b(a)(1)) of the FTC Act, which allows the FTC to obtain redress only when a company has violated a regulation. Next Steps & RecommendationsThe Final Rule will be effective October 21, 2024. In advance of this effective date, we suggest that companies that use consumer reviews, consumer testimonials or celebrity testimonials review their current marketing strategies, websites and advertisements to identify potential variances with the Final Rule and swiftly implement remedial measures as needed. A forward-looking compliance plan should then be implemented. Such companies should ensure that any third-party marketing or advertising agencies have plans in place to do the same.We are available to assist with questions regarding the Final Rule. References189 Fed. Reg. 68034 (August 22, 2024).2See 88 Fed. Reg. 48092 (July 26, 2023); Hogan Lovells Update, FTC publishes updated Endorsement Guides and proposed rule banning fake reviews (July 10, 2023).3See 88 Fed. Reg. 49364 (July 31, 2023); Hogan Lovells Update, FTC publishes updated Endorsement Guides and proposed rule banning fake reviews (July 10, 2023).4See Hogan Lovells, The Data Chronicles, Fake reviews no more, the FTC’s new rule and what it means for AI and you (Sept. 5, 2024).5In the Final Rule, the Commission added a definition clarifying that the term “manager” applies to personnel supervising others.6In 2023, the FTC brought its first enforcement action related to “review hijacking” in a case against The Bountiful Company (makers of Nature’s Bounty dietary supplements) where the company merged new product listings with existing product listings on Amazon.com to take advantage of the existing ratings, reviews, and website features highlighting those existing products, e.g., Amazon’s “Amazon’s Choice” badges. SeeIn the Matter of The Bount

On July 26, 2023, the Federal Trade Commission (“FTC”) adopted revised Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guides”). 88 FR 48092 (July 26, 2023). While the FTC has had Endorsement Guides for many years, the FTC has adapted those Guides to meet the changing digital landscape caused by the explosive growth of e-commerce and social media. The Endorsement Guides contain the FTC’s latest formal guidance on what practices regarding the use of endorsements and testimonials the FTC considers to be deceptive in violation of Section 5 of the FTC Act, 15 U.S. Code § 45.The revised Guides contain significant revisions, with several of special significance. First, the revised Guides make clear that tags in social media posts may be “endorsements.” The FTC uses the example of a professional golfer who is hired by a brand of golf balls to practice drives off the tee.If the golfer is paid to post a video of his drives to his social media account, the paid post is an endorsement even if the name of the brand of the golf balls is not mentioned or shown in the video, but is merely tagged.Second, the Guides also revise the definition of an “endor