January 23, 2024
Authored and Edited by Maxime Jarquin; Jennifer E. Fried
In a recent NAD challenge, Bath & Body Works called its competitor Goose Creek to task for—among other alleged false advertising—deceptive use of endorsements. The case involved videos of purportedly “real” consumer endorsers. Contrary to appearances, the challenger noted, these people were in fact paid actors. B&BW also took issue with Goose Creek’s failure to disclose its material connection to a vlogger, @The Candle Channel, who reviews Goose Creek’s candles.
NAD relied—to no one’s surprise—on the FTC’s Guides Concerning Use of Endorsement and Testimonials in Advertising (Guides). The Guides provide that “if there is a material connection between an endorser and the marketer that a consumer would not expect and it would affect how they evaluate the endorsement, that connection should be disclosed clearly and conspicuously.”
Goose Creek responded by assuring NAD that it had, indeed, disclosed its material connections to its endorsers. Goose Creek relied on the standard YouTube disclaimers: “includes paid promotion” and “some videos may contain paid endorsements, paid promotions or paid performance by actors.”
Case closed, then? Not so fast.
Key Takeaways
|
NAD’s concern was not just whether the material connection was disclosed—but how. NAD concluded that neither of Goose Creek’s YouTube disclosures were sufficient under the Guides because they were not clear and conspicuous. Specifically, NAD noted that Goose Creek’s complete disclosure was only visible by clicking on a “see more” hyperlink. It also lamented that the blanket disclosure (“some videos may contain paid endorsements”) failed to indicate which specific videos contained which type of endorsements.
NAD therefore recommended that these videos be modified to clearly and conspicuously disclose (in both audio and video) the fact that actors have been employed in the videos. It also recommended that Goose Creek make sufficient disclosures of its material connection to @The Candle Channel.
NAD’s Goose Creek decision serves an important reminder: when disclosing material connections, consider prominence, clarity, and specificity.
Copyright © 2024 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP.
DISCLAIMER: Although we wish to hear from you, information exchanged in this blog cannot and does not create an attorney-client relationship. Please do not post any information that you consider to be personal or confidential. If you wish for Finnegan, Henderson, Farabow, Garrett & Dunner, LLP to consider representing you, in order to establish an attorney-client relationship you must first enter a written representation agreement with Finnegan. Contact us for additional information. One of our lawyers will be happy to discuss the possibility of representation with you. Additional disclaimer information.
Lecture
Patent Protection for Software-Related Inventions in Europe and the USA Training Course
June 5, 2024
Hybrid
10th Annual Georgia Asian Pacific American Bar Association Gala
May 29, 2024
Atlanta
Due to international data regulations, we’ve updated our privacy policy. Click here to read our privacy policy in full.
We use cookies on this website to provide you with the best user experience. By accepting cookies, you agree to our use of cookies. Please note that if you opt not to accept or if you disable cookies, the “Your Finnegan” feature on this website will be disabled as well. For more information on how we use cookies, please see our Privacy Policy.
Finnegan is thrilled to announce the launch of our new blog, Ad Law Buzz, devoted solely to breaking news, developments, trends, and analysis in advertising law.