In December 2021, the Federal Trade Commission and the Attorneys General of six states (Massachusetts, Arizona, California, Georgia, Illinois, and New York) entered into a $9.4 million settlement with Google and iHeartMedia, resolving allegations that the companies used deceptive endorsements by radio personalities to promote Google's Pixel 4 phone.  

In the lawsuit against Google and iHeartMedia, the regulators alleged that Google hired iHeartMedia to have their on-air radio personalities record commercials for Google's Pixel 4 phone.  In scripts provided by Google, the personalities were told to say things like, "It’s my favorite phone camera out there, especially in low light, thanks to Night Sight Mod also great at helping me get stuff done, thanks to the new voice activated Google Assistant that can handle multiple tasks at once."  The regulators alleged, however, that, even though the DJs were told to give endorsements of the phones that reflected their first-hand experience with the phones, the DJs hadn't actually used them.  

Then, in January 2022, Texas Attorney General Ken Paxton filed a lawsuit against Google, making similar allegations.  The Texas AG argued that Google's actions violated the Texas Deceptive Trace Practices -- Consumer Protection Act by, among other things: (a) drafting, paying for, and causing to be broadcast advertisements that do not reflect the honest opinions, beliefs, or experiences of the endorser, (b) using endorsements that would be deceptive if made by Google, and (c) using endorsements that distort the endorser's experience with the product. 

At the end of last week, Paxton announced that he reached a settlement with Google resolving the allegations and in which Google agreed to pay $8 million.  In announcing the settlement, he said, "Texas will do whatever it takes to protect our citizens and our state economy from corporations’ false and misleading advertisements.  If Google is going to advertise in Texas, their statements better be true. In this case, the company made statements that were blatantly false, and our settlement holds Google accountable for lying to Texans for financial gain. Google enjoys significant influence over individual consumers and the marketplace broadly. It is imperative that large companies do not expect or enjoy special treatment under the law. They must be held accountable for their misdeeds. I will continue to protect the integrity of our marketplace and ensure that companies who lie to Texas consumers are held to account."  

While the FTC's endorsement-related enforcement efforts over the last several years have been focused on ensuring that endorsers disclose when they are speaking on behalf of an advertiser, these recent enforcement actions highlight another area of concern both at the federal and state level -- that, in most cases, endorsers must be a bona fide user of the product.  

In May 2020, the FTC launched a review of its Guides Concerning the Use of Endorsements in Testimonials in Advertising, and then, in the middle of last year, the FTC announced proposed revisions to the Guides.  The FTC's proposed revisions specifically address the issue of deceptive DJ endorsements with a new example, "In a radio advertisement, a well-known DJ talks about how much they enjoy making coffee with a particular coffee maker in the morning. The DJ's comments likely communicate that they own and regularly use the coffee maker. If they do not own it or used it only during a demonstration by its manufacturer, the ad would be deceptive."