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| By: Paul C. Van Slyke |
The National
Advertising Division, following its review of advertising by Nutrisystem, Inc.
on the new social media site Pinterest, has determined that the weight-loss
success stories “pinned” to such boards represent consumer testimonials and
require the complete disclosure of material information and the results
consumers can generally expect to receive. Nutrisytems currently has many advertisements on Pinterest.com. See http://pinterest.com/search/?q=nutrisystem.
NAD is an
investigative unit of the advertising industry’s system of self-regulation and
is administered by the Council of Better Business Bureaus. NAD decisions are
non-binding, but are given deep respect by the advertising industry and the
advertising legal community. Compliance
with NAD decisions is generally a good guide for avoiding liability in civil
litigation and Federal Trade Commission (“FTC”) enforcement actions.
Pinterest.com
Pinterest.com is a
trendy new virtual bulletin board, often described as a social photo-sharing or
scrapbooking website where users create and manage theme-based image
collections by “pinning” digital content they add or find on the web to their
personal boards. When content is “pinned,” Pinterest automatically grabs the
source link for the content which allows Pinterest to give credit to the
original creator, and allows users to return to the original source of the
content simply by clicking on the image as it appears on the pinboard. When a photo is repinned, Pinterest prompts
the user to direct the image to the specific pinboard they wish to pin to, and,
provide comments or notes about the image (if they wish )
NAD noted in its
decision that Pinterest has become a new way for companies to encourage consumers
to engage with their products and drive traffic to their websites.
Nutrisystem’s “Real
Consumers” pinboard featured photos of “real” NutriSystem customers and
highlighted their weight-loss successes. The customer’s name, total
weight loss and a link to the NutriSystem website appeared below each
photo. If consumers browsing the
Nutrisystem Pinterest board clicked on Nutrisystem’s consumer testimonial pins,
they were redirected to Nutrisystem’s website at www.nutrisystem.com
Express Claims at Issue
Express claims at
issue in NAD’s review included:
• “Christine
B. lost 46 lbs on Nutrisystem.”
• “Michael
H. lost 125 lbs. on Nutrisystem.”
• “Lisa
M. lost 115 lbs. on Nutrisystem.”
•
“Christine H. lost 223 lbs. on Nutrisystem.”
NAD Finding
In its decision, the
NAD found that the claims made on Pinterest were testimonial and required
complete disclosures of “material” information. In re Pinterest (unpublished) (NAD Case # 5479 06/20/12). The NAD found that one board, entitled “Real
Customers. Real Success.” featured photos of “real” Nutrisystem customers and
highlighted their weight loss success. The customer’s name, total weight loss
and a link to the Nutrisystem website appeared below each photo. The NAD found
“[i] t is undisputed that these pins represent consumer testimonials.”
The
NAD cited Section 255.2 (b) of the FTC’s
Guidelines Concerning the Use of Endorsements and Testimonials in Advertising
that states:
An advertisement containing an endorsement relating the experience
of one or more consumers on a central or key attribute of the product or
service also will likely be interpreted as representing that the endorser's
experience is representative of what consumers will generally achieve with the advertised
product or service in actual, albeit variable, conditions of use. Therefore, an
advertiser should possess and rely upon adequate substantiation for this
representation. If the advertiser does not have substantiation that the
endorser's experience is representative of what consumers will generally
achieve, the advertisement should clearly and conspicuously disclose the
generally expected performance in the depicted circumstances, and the
advertiser must possess and rely on adequate substantiation for that
representation.
The NAD found that the weight loss “pins” found on Nutrisystem’s
“Real Customers. Real Success.” board tout atypical results (i.e., “Michael H.
lost 125 lbs. on Nutrisystem” or “Lisa M. lost 115 lbs. on Nutrisystem”).
Therefore, as required by the FTC Guidelines, the NAD concluded that these pins
should be accompanied by a clear and conspicuous disclosure noting the typical
results consumers can expect to achieve using the Nutrisystem weight loss
program.
The NAD noted that if consumers browsing the Nutrisystem Pinterest
board clicked on Nutrisystem’s consumer testimonial pins, they were redirected
to Nutrisystem’s website which included the necessary qualifying information
(i.e., the typical results a consumer can expect to achieve using the
Nutrisystem program). The NAD observed, however, that it is well-established
that disclosures should not only be clear, conspicuous and easy to understand,
but placed in immediate proximity to the claim or representation it is intended
to clarify. In re the Campbell Soup
Company (Campbell’s Supper Bakes), Case #4038, NAD/CARU Case Reports
(May/June 2003). Therefore, said the NAD,
providing the disclosure on the website (which the consumer may or may
not visit), is not sufficient.
The advertiser Nutrisystem agreed that such statements require a
disclosure, and immediately added the
necessary disclosure (“Results not typical. On Nutrisystem®, you can expect to
lose at least 1-2 lbs. per week. Individuals are remunerated. Weight lost on
prior Nutrisystem® program.” The NAD
therefore concluded its action.
Take-Aways
Social
media and online sites that may not appear to be traditional advertising media
can have advertising messages of a testimonial or endorsement nature that
require compliance with the requirements for complete disclosures of material
information as well as comply with the FTC guidelines. When there is any reasonable interpretation
that the content is a commercial advertising message of a testimonial or
endorsement nature, it is wise to include a complete disclosure of material
information about the endorser’s connections with the advertiser and whether
the endorser was paid or received a benefit from the advertiser,
accompanied by a clear and conspicuous
disclosure noting the typical results consumers can expect to achieve. The disclosure must be in close proximity to
the advertising claim.
