|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 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.”
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.
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.