Business Law

Advertising and Endorsers…It is Wrong to Fake it

In conjunction with actions brought by State Attorneys General, and the Federal Trade Commission (“FTC”) alleging that Google and iHeartMedia aired ads featuring iHeart radio personalities touting their positive personal experiences with Google’s Pixel 4 phone when the purported endorsers hadn’t used the product, both an advertiser and endorsers for its products were found responsible for violating the FTC’s truth-in-advertising.

iHeartMedia gives selected on-air personalities the option to make more money by recording ads for specific clients that will run on iHeart stations. Through its media buying agent, Google paid iHeartMedia to have its on-air personalities record ads for the company’s Pixel 4 to run on iHeartMedia stations.

The FTC alleged Google provided iHeartMedia with scripts for the radio personalities to use in recording ads. The typical script lauded many features of the Pixel 4, and included multiple first-person references to how the endorser had supposedly used the phone – for example, for taking photos at “my son’s football game,” “my mom and dad’s 50th birthdays,” or “my daughter’s school play.” Some on-air personalities customized parts of the script to their personal lives.

But regardless of what the radio personalities stated in the ads, the FTC asserted they all had one thing in common: None of them had ever actually owned or regularly used Google’s Pixel 4. Despite both Google and iHeartMedia being aware that the on-air personalities hadn’t actually used the Pixel 4, iHeartMedia continued to get its personnel to record and air similar ads.

The FTC complaint alleges that Google and iHeartMedia violated the FTC Act by falsely representing that iHeart personalities owned or regularly used Pixel 4s.

As a result, the FTC has issued proposed orders against Google and iHeartMedia prohibiting them from making misrepresentations that an endorser has owned or used certain products or about their experience with those products, and settlements with various State Attorneys General imposed $9.4 million in financial penalties.

The FTC Endorsement Guides makes it clear, “When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user of it at the time the endorsement was given.”

No matter the size of your business, there’s no excuse for any advertiser to ignore that truth-in-advertising fundamental. Further, the truth-in-advertising obligation is a two-way street. Both the advertiser and the endorser are responsible for ensuring their advertising claims are truthful or they both risk being held liable if they fail in their obligation to consumers.