It’s the end of the year and I figured I’d close it out by reviving one of my favorite types of blog posts: commenting on an ad I saw on the subway. Like many ads that catch my eye during my commute, this campaign is for dog food.  (Such ads appeal to me as both an ad lawyer and devoted pet parent.  And blogging about them gives me an excuse to use a picture of my own beloved Labradoodle, Finley, in a blog post.) In this campaign, the subway ads include pictures of adorable dogs, along with reviews from their owners about how their once sickly dogs became active and healthy after they switched to the advertiser’s dog food.  The reviews appear in quotation marks and include the reviewer’s first name and name of their dog.  In other words, they are (or appear to be) real reviews with real quotations from real people about their real dogs.

Let’s unpack all the ad law issues here.

First, as the FTC Endorsement Guidelines and NAD precedent make clear, an endorsement (1) must reflect the honest opinion of the endorser; (2) can’t be used to make a claim that the product’s marketer couldn’t itself legally make; that (3) if the advertiser doesn’t have proof that the endorser’s experience represents what people will generally achieve using the product as described in the ad, then the ad featuring that endorsement must make clear to the audience what the generally expected results are; and (4) if there’s a material connection between the endorser and the marketer that consumers would not expect and it would affect how consumers evaluate the endorsement, that connection should be disclosed. 

How do these rules apply here? Remember that at issue here is a health claim, albeit one involving dogs rather than people, but nonetheless, an impactful one, especially for dog owners.  So, first, are the reviews real? Did the advertiser verify that the reviewers’ testimonials reflect their honest opinions and actual experiences? Did the advertiser get a release from the reviewers to that effect?  Second, can the advertiser independently substantiate that its dog food actually improves dogs’ health, that a sickly dog can become healthy and active by eating the advertiser’s products? It’s all well and good that the reviewers thought that their own dog’s health improved by eating the product, but unless the advertiser can show that its product actually does what the reviewers claim, the advertiser should not be using these reviews in an ad. 

Third, is the health and activity improvement typical?  Even if consumers wouldn’t necessarily take away a claim from the ads that even the sickest dogs will be “cured” by eating the food, they are likely to take away a claim that the food can have a very significant effect on their dogs’ health and activity level.  The advertiser must be able to substantiate that and, if it can’t, it must state what the typical performance a consumer can expect (presumably, SOME improvement). And, finally, did the reviewers’ whose testimonials were used in the ads receive any incentive for those testimonials?  If they did, that must be disclosed in the ad.

A final note: all of the advertiser’s responsibilities addressed above are triggered by the fact that the advertiser used the reviews in its ads.  Assuming the advertiser didn’t incentive the reviews in any way, and otherwise engaged in appropriate review hygiene, then had the reviews just appeared on the advertiser’s product review page, along with all the other reviews (good and bad), the advertiser would not have had to verify them or make sure they were typical, or anything else. But once it took those reviews and put them in their subway ads, the advertiser “owned” them.  Woof.