As we previously reported, the Federal Trade Commission (FTC) seeks comments on proposed updates to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides). The FTC’s notice was published in the Federal Register on July 26, 2022 (87 Fed. Reg. 44288), and comments must be received by September 26, 2022.

The Endorsement Guides are intended to help businesses ensure that their advertising testimonials and endorsements are not deceptive or misleading and that material connections between endorsers and companies are disclosed. As we discussed earlier, the FTC’s proposed updates to the Endorsement Guides focus on advertisers that post fake positive reviews or delete negative reviews and advertisers whose disclosures fall short. The changes would also add, among other things, more illustrative examples to help clarify the Guides’ provisions and new sections on endorsements and consumer reviews.

Additionally, the FTC proposes adding a new, very general provision regarding children, namely, that “[p]ractices which would not ordinarily be questioned in advertisements directed to adults might be questioned” if they are directed to children. However, the preamble supplements this by noting that the FTC suggested a similar provision in 1972 (after the kid-vid proceeding) but withdrew it in 1976. Now, the FTC suggests that “even as more evidence is gathered about the effects of children’s advertising, there is ample basis to recognize that children may react differently than adults to endorsements in advertising or to related disclosures.” Chair Lina Khan’s statement notes that the FTC currently lacks the full evidentiary basis to support specific guidance or propose best practices, and she pointed to the planned October 19, 2022 workshop, “Protecting Kids from Stealth Advertising in Digital Media,” as a vehicle to obtain more information. (The comment deadline was July 18).

It will be important for businesses to weigh in on all aspects of the FTC’s proposals.