An FTC thread that you REALLY should read

[Steven Carl Kelly]

I will preface this post with the disclaimer that I am not a lawyer and you should consult with your own attorney for complete guidance on these issues. This post is long but (I feel) valuable. If you are concerned at all about the FTC rules then please, read this post completely and thoroughly, it may help ease your mind.


I've seen a lot of what I consider "overreaction" to the new FTC guides. Bear in mind that these new guides apply to the "Use of Endorsements and Testimonials in Advertising". Ads not using endorsements and testimonials are not addressed herein.

I see far too many good, honest Warriors fretting unnecessarily about this and that's why I want to try and clarify a few a points.

Regarding ads with testimonials and endorsements, I seem to see a lot of folks particularly concerned on the issue of disclosing "average results". First, understand that the guide doesn't address "average" results but instead addresses "generally expected" results. There's a very specific reason for that: because the FTC recognizes that it would be impractical to survey every one of your customers and to create a true mathematical average result.


From the FTC guide:
For example, the term “generally expected results” is used rather than “average” in order to convey that this disclosure would not have to be based on an exact mathematical average of users of the product, such as might be developed from a valid survey of actual users.


In addition, you must also understand that the FTC guide further qualifies the generally expected results to apply to "the depicted circumstances" in the testimonial.


From the FTC guide:
Advertisers are not required to identify a “typical consumer” of their product and then determine what result that consumer achieved. Rather, the required disclosure in this circumstance is “the generally expected performance in the depicted circumstances.” Thus, advertisers are provided some reasonable leeway to make this disclosure. For example, the term “generally expected results” is used rather than “average” in order to convey that this disclosure would not have to be based on an exact mathematical average of users of the product, such as might be developed from a valid survey of actual users. For example, substantiation for a “generally expected results” disclosure could be extrapolated from valid, well-controlled clinical studies of patients matching the profile of the persons in the ad, even though consumers’ real world results are not likely to match exactly the results in the clinical study.


Pay particular attention to the above. You can use the "depicted circumstances" to limit the "generally expected results" you need to disclose. Limit the circumstances and you may limit the disclosure.


From the FTC guide:
In other cases, the advertiser may be able to limit the scope of the disclosure by limiting the circumstances depicted in the advertisement. For example, if all of the testimonials used in an advertisement are clearly identified as persons who have been members of a weight loss clinic for at least one year, the disclosure can be based on performance data from that group. In any event, the disclosure of generally expected results should clearly identify the group from which the data were obtained.


You can also use scientific principles to substantiate.


From the FTC guide:
In some instances, advertisers may rely on generally accepted scientific principles (e.g., the average individual needs a net calorie deficit of 3,500 calories to lose 1 pound) to determine generally expected results.


So you say that most of your customers won't even bother to implement your program and thus your "average" result will be a big fat ZERO? The FTC recognizes this as well.


From the FTC guide:
The Commission recognizes that differences in physiology and commitment will affect the results that individual consumers will get from a particular weight loss or fitness product or program. The proposed revisions to Section 255.2 do not prescribe a uniform one-size-fits-all disclaimer, however, and an advertiser could take these factors into consideration in crafting a disclosure. With meaningful disclosures, consumers not only would have a realistic sense of what they can expect from a product or service, but could also take away the message that if they dedicate themselves as much as the testimonialist did, they might achieve even more.


The FTC even recognizes that you, as a marketer, may not even have the necessary information to be able to disclose generally expected performance. Does that mean you can't use testimonials at all? Absolutely NOT!


From the FTC guide:
Nevertheless, as the Commission recognized in the November 2008 Federal Register notice, 73 FR at 72382, some advertisers may not have the information available to them to be able to disclose the generally expected performance of their product or service to consumers. In these cases, advertisers using testimonials need either to exercise care not to convey a typicality claim, or to rely on statements of general endorsement of the product, e.g., “I’ve tried many products and this was the best.”


Great! You can still use testimonials that offer an OPINION without any disclaimer of generally expected performance. Just don't use testimonials that make a SPECIFIC CLAIM about SPECIFIC PERFORMANCE.

Joe Schmoe says: "I used Jay's new Internet Money Suction Filter System and I made $1.2 million in 17-and-a-half minutes!"

That requires a disclaimer of generally expected performance.

Joe Schmoe says: "I've bought nearly two dozen online money-making guides, and I can say that Jay's new Internet Money Suction Filter System is by far the best I've ever purchased."

No disclaimer required.


Take a step back and look at what the FTC guide is requiring and what it is allowing. If you're a legitimate, concerned, serious marketer then you should be able to easily determine that these guides are a GOOD thing for you because it should, in at least some way, cut down on the number of unscrupulous marketers who have no qualm in offering false claims for their products. You will also see exactly how you can use these guides properly to ensure that you can continue to effectively market your products without fear of running afoul of the FTC.

Don't freak out. Be calm, examine all of your marketing materials, and revise them as appropriately. If you're like me, you may eventually come to see that this HELPS marketers like you and I.

[LB]

Joe Schmoe says: "I used Jay's new Internet Money Suction Filter System and I made $1.2 million in 17-and-a-half minutes!"

That requires a disclaimer of generally expected performance.

Joe Schmoe says: "I've bought nearly two dozen online money-making guides, and I can say that Jay's new Internet Money Suction Filter System is by far the best I've ever purchased."

Unfortunately, the first testimonial example you give is the exact kind successful copywriters have been using for years and is by FAR the most effective.

Your second example is vague, nonspecific and the kind that does little to increase conversions.

The problem is how do you determine what generally expected performance is for an ebook? And would the methodology you used to determine that stand up to scrutiny?

These are answers I have yet to see.

[Steven Carl Kelly]

Originally Posted by LB

Unfortunately, the first testimonial example you give is the exact kind successful copywriters have been using for years and is by FAR the most effective.

Your second example is vague, nonspecific and the kind that does little to increase conversions.

Well, I've always completely avoided the first type of testimonial so I can't speak to how a testimonial like that would affect my own conversion rates.

[blueclcl]

If you had a text ad on your home page that says something like ("Click here for your free report which will help you to earn lots of cash online") then is this a NO No with the FTC.

Also if it is ,then is the below text ad Ok:

("Click here for your free report which Can help you to earn lots of cash online")

[ronr]

We'll just need to live with the rules.

Howver for some products/markets it's going to make it much harder to sell.

For example you may have a course that contains great information on how to start a specific type of business. You tell all about the course, what it contains, how complete it is, etc. You do everything you can to develop a relationship with them, etc.

But no matter how well you tell about the course and what kind of relationship you build what is going through the prospects mind is:

Does this really work?
Will it work for me?

UNtil now, to help them overcome that, you include REAL testimonials, from REAL people with specific results that they have obtained. In many cases, this is what gets to them to order because they have been able to read real results that other people have obtained.

With these new rulings you are only going be able to use testimonials telling complete the course is, how professional it is written. This is much, much weaker than being able to show specific results your customers have obtained.

Or what if you are a offering a service like marketing consulting.

You tell how much experienced you are, etc. but what is going through
the prospects mind is "Ok but does this guy produce results".

You have files full of people telling you specific results they obtained.
Now you can't put them on your website. You can only use ones that say you "increased sales", "produced better results than last consultant" etc.

Helpful?

Yes, but much, much weaker than a real testimonial that says, "Your consulting produced produced $723,642 in increased sales this year alone.

Ron

[lklein]

If you can't use a real testimonial then doesn't that violate your freedom of speach/print?

Too bad so many had to use false ones or make false claims to force this action.

I'm sure the drug companies will figure a way out though. BTW does that mean they have to redo most TV comercials?

Lambert

[DogScout]

I have seen 100's of landing pages with the same headline: "I Made $576,437 in My Fisrt 30 Days"
Obviously not all those people made the same amount of money, yet each page was signed by a different person. THAT the kind of crap the FTC is after.

I think if you are honest about your testimonials, (which has always been required) and your disclaimer is not hidden in small print at the bottom of the page or on a separate page; in other words, conform to 'the spirit' of the law, no one will bother you.

The FTC is a busy division. They also enforce the used car disclosure stickers and the privacy laws. They will find blatant abusers and make an example of them. they have done so with both the stickers and the privacy laws. The fine is per incident/per day and bankrupts anyone they go after in most cases. The vagueness of the law is both good and bad. It allows them to go after almost anyone, but creates a defense at the same time (though that in itself will be costly).

I foresee a disclosure going something like: "Typical results, because typically the people who purchase products like this never implement them, is zero. Typical results of those that implement even a portion of the recommendations in this system are higher."
LOL

[LB]

Originally Posted by Steven Carl Kelly

Well, I've always completely avoided the first type of testimonial so I can't speak to how a testimonial like that would affect my own conversion rates.

Specifics are a powerful tool. This doesn't just apply to making money or losing weight.

For example, if someone was selling a book on time management and had a testimonial stating someone "gained 5 hours of free time per week" using it...how does the FTC feel about that?

No one really knows, but one would think this applies to all markets.

I purposely have avoided testimonials that say things like "really great" "you're a nice guy" "good product" because they're nothing but fluff really. People like to see specific results of what's possible...note I said possible. The FTC apparently believes that stating possibility=outcome.

I don't sell IM stuff so I don't deal with dollar amounts...but I have no idea how to quantify results in any of my markets or how I would even begin to.

[DogScout]

Oh and BTW, celebrity endorsements are exempt due to they fall into the area that '...if a person could reasonably assume the testimony was paid for...'

Of course our definition of 'reasonably assume' and theirs is much different

[Steven Carl Kelly]

Originally Posted by DogScout

Oh and BTW, celebrity endorsements are exempt due to they fall into the area that '...if a person could reasonably assume the testimony was paid for...'

Celebrity endorsements are NOT exempt.

[Steven Carl Kelly]

Originally Posted by blueclcl

If you had a text ad on your home page that says something like ("Click here for your free report which will help you to earn lots of cash online") then is this a NO No with the FTC.

Also if it is ,then is the below text ad Ok:

("Click here for your free report which Can help you to earn lots of cash online")

I would use "could" in that instance.

[Steven Carl Kelly]

Originally Posted by DogScout

I have seen 100's of landing pages with the same headline: "I Made $576,437 in My Fisrt 30 Days"

Actually, if factual, those headlines are safe. If you are relating your own, PERSONAL experience, you're in the clear.

[DogScout]

"Nor should Example 6 to Section 255.0 be read to suggest that every appearance by a
well-known personality will be deemed an endorsement. As the Commission previously noted,
this example was added “to illustrate that the determination of whether a speaker’s statement is
an endorsement depends solely on whether consumers believe that it represents the endorser’s
own view.” Id. Example 6 does not expand the scope of potential endorser liability but merely
“clarifies that whether the person making the statement is speaking from a script, or giving the
endorsement in his or her words, is irrelevant to the determination.” Id. In this example, the
celebrity’s statement that the home fitness system being advertised “is the most effective and
easy-to-use home exercise machine that she has ever tried” would clearly be understood by
consumers as an expression of personal belief. Moreover, new Example 7 to Section 255.0
presents a situation in which well-known persons who appear in advertising are not deemed to be
endorsers."

[DogScout]

So sometimes they are and sometimes they aren't

[Steven Carl Kelly]

Originally Posted by DogScout

So sometimes they are and sometimes they aren't

Yes, but maybe we're just talking semantics here. To me "exempt" means "not covered at all" rather than "covered depending on circumstances". To me, if someone says "XYZ is exempt" that means XYZ doesn't fall under the regulation.

[pcpupil]

Ill post here as ive posted in the other threads but noone has responded to my posts.Most everybody is trying to come up with reasons we are under attack by the FTC.
I downloaded the FTCs PDF from the thread with [5staraffiliateprogram].
After reading it,there isnt much of a concern if you read the examples and what there saying.
Its this,if it has any numbers,figures,minutes,hrs,days,time,lbs,color,ec t...you must have documentation to prove it.And even then,it still has guidlines to follow to help you.You dont have to spend thousands of dollars and hundreds of people to get your documentation as the op has stated above.
What i plan on doing is checking out the top IM marketers sites and then just rewrite there disclaimers to fit me.They pay there lawyers a lot more than i could afford.
So there products might not work,but there disclaimer will help me.
Matt

[Steven Carl Kelly]

Originally Posted by pcpupil

I downloaded the FTCs PDF from the thread with [5staraffiliateprogram]. After reading it,there isnt much of a concern if you read the examples and what there saying.

The important thing is to read the document thoroughly. Most people will find that this isn't as big a deal as they think.

[futuremills]

good info here...im a n00b who is just starting and when i first heard the news via an autoresponder email that stated "internet marketing is dead" i started freaking out. Thanks for helping to clear things up

[Steven Carl Kelly]

Here's a link to the document. The first part has information about comments the FTC received about the proposed new guides, so the first part doesn't really help a whole lot. Skip down to page 55 for the real information on the guides, and there you will find a whole bunch of examples:

http://www.ftc.gov/os/2009/10/091005...esfnnotice.pdf

I hope this helps.

[Steven Carl Kelly]

Oh, and as I stated in another thread, you CAN still use results-based testimonials, folks. The information on how to do that without collecting results data from every single one of your customers is in the document I linked to, above.

[vexxx]

Does this new ruling mean that any affiliate links inside your own paid info products, free reports and emails to list members must also be disclosed within that media?

-Nick

[pcpupil]

Not that i have read anywhere.This is for sales letters,and pages where something is for sale.
If you have a list and you send them an email suggesting a product and they must purchase it,they already know your getting paid.
If you have a link inside a report or ebook,or whatever,the link doesnt have to say anything,but when the link opens at the webpage the webpage must disclose the info.
Matt