New FTC Rules and Guidelines – The Problem with the New Testimonial Rules

By Karen Brunet | October 27, 2009

problem-with-testimonial-rules One of the FTC examples covered during our recent teleseminar on the new FTC rules and guidelines concerned the new “expected results” guidelines for testimonials.

I thought the example read and discussed during the call was a good model. But it still leaves a lot of unanswered questions for some about what qualifies as “expected results.”

In this article, I’ll address one of those problems and suggest a couple of solutions, especially applicable for coaches and consultants.

The Issue

For those of you just joining us, the FTC says that ads must clearly disclose the results that consumers can generally expect when using the product or service.

The FTC example read is as follows:

“An advertisement for a weight-loss product features a formerly obese woman. She says in the ad, “Every day, I drank 2 WeightAway shakes, ate only raw vegetables, and exercised vigorously for six hours at the gym. By the end of six month, I had gone from 250 pounds to 140 pounds.” The advertisement accurately describes the woman’s experience, and such a result is within the range that would be generally experienced by an extremely overweight individual who consumed WeightAway shakes, only ate raw vegetables, and exercised as the endorser did. Because the endorser clearly describes the limited and truly exceptional circumstances under which she achieved her results, the ad is not likely to convey that consumers who weigh substantially less or use WeightAway under less extreme circumstances will lose 110 pounds in six months. (If the advertisement simply says that the endorser lost 110 pounds in six months using WeightAway together with diet and exercise, however, this description would not adequately alert consumers to the truly remarkable circumstances leading to her weight loss.) The advertiser must have substantiation, however, for any performance claims conveyed by the endorsement (e.g. that WeightAway is an effective weight loss product).

“If in the alternative, the advertisement simply features “before” and “after” pictures of a woman who says “I lost 50 pounds in 6 months with WeightAway,” the ad is likely to convey that her experience is representative of what consumers will generally achieve. Therefore, if consumers cannot generally expect to achieve such results, the ad should clearly and conspicuously disclose what they can expect to lose in the depicted circumstances (e.g. “most women who use WeightAway for six months lose at least 15 pounds”).”

The Objection

One of our teleseminar listeners, sent in this comment: “No matter how carefully you qualify the conditions of the claim, it can still mislead. In order for someone to achieve similar results, you’d have to assume that:

Their level of intelligence or sales experience wouldn’t matter.
It doesn’t matter where they live.
It doesn’t matter what the product is.
It doesn’t matter what industry they are in.”

He makes a very good point. And this is one of the problems with the new FTC rule about including “expected results” in testimonials. Not everyone lives in the same location, has the same metabolism, or even has the same experience. Each client is unique so each client gets different results.

However, I think if you look at the FTC example, that argument may not be relevant. Here’s what I mean.

In the first testimonial example above, the FTC states that “The advertisement accurately describes the woman’s experience, and such a result is within the range that would be generally experienced by an extremely overweight individual who consumed WeightAway shakes, only ate raw vegetables, and exercised as the endorser did.”

Well, what if I don’t have the same metabolism she did? What if I don’t do the same exercises at the gym that she did? What if I did swimming and muscle strengthening, and she did aerobics and treadmill? What if I ate different vegetables?

According to the example given by the FTC, none of that matters. The advertiser “accurately describes the woman’s experience” simply by including the amount of weight, the time period, her diet in general terms, and her exercise program in general terms and time committed. And the FTC says in essence, “That’s good enough.”

Possible Solutions

So how can you use this in your coaching practice so that you, too, can use testimonials that include similar “limited and truly exceptional circumstances under which [the client] achieved her results?”

Want to have fun? Let’s play with that for a moment.

Let’s say the client was part of your 6 month coaching program. Ok, you got a time frame in which to achieve a certain result.

And the client states in the testimonial what type of business she is in, e.g. consultant, copywriter, coach, sales manager, etc. So now you have limited circumstances.

And during that time she spent about 15 hours per week working on your program assignments, filling out all the worksheets, and attending her coaching sessions. Now we have the level of commitment the client made in terms of what she did and the number of hours: 15 hours per week for 6 months.

At the end of six months, she had reduced the amount of time she spent working in her business 25%, from 40 hours to 30 hours per week. She also increased her net income 30%, from $5,000 to $6,500 per month. So now we have results in terms of more time off and more net income earned.

And finally she gives her opinion that she never would have achieved such fantastic results without your coaching and guidance.

Based on the FTC example about WeightAway, it is my opinion that such a testimonial would meet the requirements of the new FTC guidelines. Such an ad would not convey that someone who committed less time to the program or who was in a different profession or who earned substantially less income to begin with could expect to achieve the same results.

Now there are many successful online marketers who have decided to be conservative, for the time being, and are simply removing all income claims from their testimonials. And I think that is a safe move.

But I wanted to point out possible alternatives to those of you who do want to keep specific results and claims in your client testimonials. Whenever you use testimonials, remember that the FTC is stressing the importance of honesty and accuracy. They want to ensure that advertisers are not misleading consumers.

It would be nice if the number of wild and misleading ads could be reduced. I don’t know about you, but I’m really tired of seeing ads like, “Find out how this unemployed mother of 6 made $35,000 in 15 minutes using our revolutionary new money system while sitting on the beach with her laptop computer and a fruity drink with an umbrella in it.”

If you weren’t able to join us on the live teleseminar and you’d like to listen to the rest of our discussion about the new FTC rules regarding testimonials, you can still get your copy of the call recording here:

http://www.essdreamteam.com/ftc-offer.php

(Please note that no legal advice is dispensed on this website or during the teleseminar, and any information or opinions shared are for educational and entertainment purposes only. If you want legal advice, please seek the services of an attorney for your particular circumstances.)

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