Recently Sony Pictures suffered embarrassing allegations about its advertising for a second time, after the news media discovered that the firm had used its employees’ endorsements in a television commercial for The Patriot—one of its own films.
In the commercial, people who apparently have just seen the movie are stopped in the theater lobby and asked for their opinions. According to media reports, two employees from Sony Pictures’ marketing department, who appear to be average filmgoers, are featured in the commercial without any disclosure of their professional affiliation. One of them endorses The Patriot, calling it a "perfect date movie."
In response to the allegations, Sony Pictures has reportedly said that it will stop the practice of using undisclosed actors or employees in its endorsement advertising.
These false-advertising charges, and the public relations fiasco that resulted, could easily have been avoided. Years ago, the Federal Trade Commission issued its Guides Concerning Use of Endorsements and Testimonials in Advertising, which basically prohibit the use of misleading endorsements and give specific advice on how to properly use consumers’ opinions in advertising.
With little effort, effective endorsement advertising can be done legally, without running afoul of the FTC’s guidelines or creating public relations problems. Here are a few basic tips to keep in mind:
•Endorsements must be real. An endorsement must reflect the honest opinions, findings, beliefs or experience of the endorser. The endorser must also be an actual user of the product or service being advertised.
•"Fake" endorsements must be disclosed. If you use a "fake" consumer endorsement in a commercial—such as an endorsement from a paid actor or a company employee—and viewers may be confused into thinking that it is a "real" consumer endorsement, then you must generally disclose the true identity of the endorser, clearly and conspicuously. Any other relevant connection between the endorser and the advertiser must also be disclosed. If the endorsement is obviously a "slice of life," and is clearly not a depiction of a real consumer, then no disclosure is likely to be necessary.
•The opinions of consumers must be obtained without them knowing that those opinions may be used in advertising. The FTC believes that consumers will not give their honest opinions if they know that their opinions may be used in a commercial. Thus, under FTC guidelines, a consumer can only learn that his opinion may be used for advertising purposes after the opinion has been given. When you stand outside a movie theater with a camera, a microphone and lights, and then ask a person whether he likes the film, you generally will have obtained an improper endorsement. Obtain the opinion first without any cameras or promise of fame in sight, and then take the person around the corner to give that opinion again on film. If the endorsement is obtained improperly, that fact may need to be disclosed in the commercial.
•Endorsements must be substantiated. The advertiser must be able to substantiate any factual representation made in an endorsement and must also ensure that the endorsement is not deceptive. (If the endorser says that his car can go from zero to 60 in seven seconds, then the advertiser must have proof for that.) The advertiser generally must also be able to substantiate that the opinion expressed reflects consumers’ typical experiences. If a consumer’s experience is not typical—"I lost 100 pounds in two weeks"—then that fact may need to be disclosed.
•Obtain Endorser’s Certificates. If you use an endorsement, you should obtain a release that entitles you to use the endorsement, that attests to the fact that the views expressed are the endorser’s actual views, and that requires the endorser to inform you of any change in his views.
In the long run, following these simple guidelines will help producers to avoid needless embarrassment and legal hassles, as well as lost clients.
