Testimonials (also known as "endorsements") can be effective advertising tools. Consumers often fail to distinguish between the advertiser, on the one hand, and the opinions, beliefs, findings or experiences of the person providing the testimonial, on the other.
Recognizing the effectiveness of testimonials, healthcare marketers have turned to them in waging the battle for enrolling subscribers, including the much sought after senior citizen market.
But just as Hollywood and tire companies have to comply with government regulations relating to endorsements and testimonials, so do healthcare marketers.
Under federal law, the Federal Trade Commission has the regulatory authority to prohibit deceptive acts and practices and unfair methods of competition.
It has statutory authority to challenge what it views to be improper uses of testimonials and endorsements in advertisements by a wide range of businesses, including those in the healthcare industry, and to issue regulatory guidelines.
Several months ago, for example, the FTC challenged a number of advertisements by two hospitals and a company that operated under the trade name Cancer Treatment Centers of America. The centers claimed in their ads that the five-year survival rates for the cancer patients they treated were "among the highest recorded." The ads also used endorsements by former patients who expressly represented or implied that their experiences were typical of the experiences of the Centers' consumers.
The Centers settled their dispute with the FTC by agreeing that they would not make any representation about either the existence or content of statistical data purporting to document survivorship or cure rates for the Centers' cancer patients unless they had reliable scientific evidence substantiating such representations.
The Centers also agreed that testimonials about any of the Centers' treatment programs would represent the typical or ordinary experiences of their patients unless the ads "prominently" disclosed either what the generally expected results would be for patients or that patients should not expect to experience similar results.
Fortunately for advertisers, the FTC has issued guidelines setting forth standards for the appropriate use of endorsements and testimonials in ads. The guidelines contain several general rules that relate to all endorsements.
For example, endorsements must always reflect the honest opinions, findings, beliefs or experience of an endorser.
Although an endorsement message need not be phrased in the exact words of the endorser (unless an ad states that it is), the message may not be presented out of context or reworded to distort the endorser's opinion or experience.
The FTC also has special rules relating to endorsements by consumers, experts, and organizations.
For instance, as discovered by the Cancer Treatment Centers of America, an endorsement reflecting the experience of an individual or a group of consumers on a key attribute of a product or service must be representative of what consumers will generally achieve with the product or service, or clearly indicate otherwise.
To come within this rule, the advertisers generally must possess surveys to substantiate the "representative" criteria.
Moreover, ads presenting endorsements by what are represented to be "actual consumers" should use actual consumers or clearly disclose that the persons in the ads are not actual consumers of the advertised products.
The FTC requires that whenever an ad represents that an endorser is an "expert," the person must be an expert. That is only reasonable: for example, an endorsement of a car by a person described as an "engineer" implies that the person's professional training and experience are such that the endorser is well acquainted with the design and performance of automobiles, and that the person's opinion should be given greater weight.
If the expert's field is not related to automobile design and performance, however, the FTC has indicated that the endorsement is deceptive. Endorsements by experts also must be supported by an actual exercise of their particular expertise in evaluating product features or characteristics with respect to which they are experts.
In particular cases it may be difficult to ascertain whether a particular ad contains an endorsement subject to the FTC's rules or whether a particular endorsement actually complies with the standards. In addition, other agencies such as HCFA may require approval.
When in doubt, though, it would behoove healthcare marketers to have legal counsel review ads before they are published, especially because an "advice of counsel" defense may be helpful in the event of litigation. Taking these preventative steps is worthwhile, because FTC investigations can be difficult, and costly, to resolve.