What can you say
What does the 2023 FTC standard require of a testimonial disclaimer?
The disclaimer is not the shield most people think it is.
More than a disclaimer can carry. Under the FTC Endorsement Guides revised in 2023, a testimonial suggesting a typical result must disclose the performance customers generally get, and hold substantiation for that figure. A results not typical line no longer saves a misleading ad; paid or incentivized endorsers must be disclosed up front.
The Guides demand more than a caveat. An endorsement about a central feature is treated as a claim that the endorser's experience is what people can generally expect, so if you cannot back that up, the ad has to disclose the results customers really get. That obligation lives in 16 CFR 255.2(b), and a misleading endorsement is an unfair or deceptive practice under Section 5 of the FTC Act. The fix is a substantiated disclosure, not smaller print.
An endorsement about a central attribute is likely read as representative of what consumers generally achieve; without substantiation, the ad must clearly disclose the generally expected performance.
The results not typical safe harbor was already gone before 2023: the FTC removed it in the 2009 revision. 2023 tightened the definition of a disclosure. Under 16 CFR 255.0(f), clear and conspicuous means difficult to miss and easily understood: a point made in video must be disclosed in the video, one in audio must be spoken, and a fine-print footer under a splashy claim does not qualify. The 2023 Guides also sharpened the treatment of fake and incentivized reviews.
Clear and conspicuous means a disclosure is difficult to miss (that is, easily noticeable) and easily understandable by ordinary consumers.
Substantiation is only half the job. A material connection, anything that could affect the weight a reader gives the review, has to be disclosed. Payment is the obvious case, but free treatment, a discount, a gift, a staff or family relationship, or an entry into a prize draw all count. The rule is 16 CFR 255.5, and the disclosure has to travel with the endorsement wherever it appears, including a reshare. For regulated health marketing it stacks on everything else.
When a connection between the endorser and the seller might materially affect the weight of the endorsement, that connection must be disclosed clearly and conspicuously.
The scanner cannot audit your outcomes files. It reads the line for whether the words promise a result you would then have to prove.
Real patient, real results: I lost 52 pounds on the program. Results not typical.
The results not typical tag does not cure an ad that still implies a common outcome. Under the revised Guides the ad has to disclose the performance patients generally get and hold substantiation for it, which the scanner cannot see attached.
FTC Endorsement Guides, generally expected performance · 16 CFR 255.2(b); 255.5
Sponsored, this patient was paid. Her 52 pound loss is unusual; in our published outcomes most patients lose far less over the same period.
Names the paid connection and signals that the standout number is not typical. The general figure it points to still has to match real substantiation before this runs.
Sources
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