How to legally use testimonials in advertising | Rachel Brenke

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How to legally use testimonials in advertising

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Using testimonials in advertising is one of the strongest pieces of marketing that one can use.  These testimonials can come by way of formal feedback requests (surveys), comments on Facebook walls, and tweets on Twitter.

While there is great power in the punch for the strength of a testimonial, legalities come with it that place a duty on the individual using them in marketing.

Testimonials legalities are pretty clear-cut and straight to the point. The name of the game is disclosure.

The reason for this is because there is governing law that requires that we do so, but the law is there to protect consumers from misleading or deceptive practices such as false testimonials.

One thing to remember, disclosure and adherence to the law will only increase buyer confidence.  It will not diminish the strength of the testimonial in marketing. What will weaken the marketing strength is if you are found in violation of law.

Let’s dig into the legalities.

The Law

Section 5 of the Federal Trade Commission Act (15 U.S.C. 45) specifically discusses the use of endorsements and testimonials in advertising.

The goal of this law is to make unfair methods of competition unlawful. Level the playing field ya know?

The law itself has lots of parts – including organization and expert endorsement – but for the evaluation of a referral representatives here are some highlights for you. 15 U.S.C. 45

  • Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser.
  • When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user (real or genuine – so not a fake user!) of it at the time the endorsement was given.
  • When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.

See: FTC’s Use of Testimonials in Advertising Guide

This law includes not only testimonials and social proof used in marketing, but also all the client referral programs of business affiliations that you have.

The goal of the law is to make unfair methods of competition unlawful. It’s to level the playing field so that we are not deceiving clients and customers to engage in business with us because it just causes issues later on down the line. I know many of you are only going to put fair and accurate testimonials on your site, but let’s dig through it and see exactly when we need to disclose about a testimonial or not.

#1 Honest Opinions

First and foremost, endorsements need to reflect the honest opinions, findings, beliefs, or experience of the endorser, your client. Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser. Just be honest. Just make sure that whenever you are having a testimonial, you’re going to a legit bona fide customer that you’ve had in the past or a business partner that you’ve actually worked with. You don’t want to just pick someone off the street to create a testimonial for you because they have no honest opinion, finding, belief, or experience about you, and it’s implying a representation that is deceptive to trick people into believing that that individual was a client of yours when they never have done any business; that’s just common sense, right? We only want to use the social proof and the testimonials of those that have actually engaged in our business.

#2 Bona fide Purchaser

When the advertisement represents that the endorser use an endorsed product, the endorser must’ve been, like I just said, a bona fide user. This is language straight out of the FTC use of testimonials and advertising guide.

I just said it a second ago, we need to have someone that’s an actual customer, real or genuine, not a fake user, at the time the endorsement was given. So they need to have already used our products and services when they are giving the testimonial, not in anticipation of becoming a client of ours.

#3  Disclose Connections

And then the third aspect is when there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, this connection must be fully disclosed.

What do I do now?

Good thing you asked – it is time to double check all marketing to be sure you’re adhering to these laws.

How to legally use testimonials in advertising

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I'm a multi-faceted entrepreneur, business strategist and intellectual property attorney ready to help you start building the life + business you dream of!

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