The NAD's First Take on Pinterest: Pinterest Content Subject to Testimonial Guidelines
In a recent decision, the National Advertising Division (“NAD”) found that consumer “pins” on the “virtual bulletin board” site, Pinterest.com (“Pinterest”), are subject to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Testimonial Guidelines”). Pinterest allows consumers to tag images to themed, virtual bulletin boards for other users of the Pinterest site to view and search. Last month, the NAD reviewed various pins on Nutrisystem Inc.’s (“Nutrisystem”) “Real Consumers. Real Success.” board on Pinterest. The board invited real consumers to post their weight loss success stories to it (collectively, the “Success Story Pins”). Based on its review, the NAD determined that the Success Story Pins “represent consumer testimonials and require the complete disclosure of material information” as required by the FTC Testimonial Guidelines.
In each of the Success Story Pins, the consumer included his/her name and a link to the Nutrisystem website and touted his/her total weight loss. The specific claims at issue in the Success Story Pins included, for example, “Christine B. lost 46lbs on Nutrisystem.” Nutrisystem did not dispute the NAD’s assertion that the Success Story Pins constituted testimonials under the FTC Testimonial Guidelines.
Section 255.2 (b) of the FTC Testimonial Guidelines 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.
Since the Success Story Pins touted atypical results, the NAD explained that they should have been accompanied by a clear and conspicuous disclosure noting the typical results consumers can expect to achieve using the Nutrisystem weight loss program. The NAD further noted that such disclosures should have appeared in close proximity to the claims that they were intended to qualify. Nutrisystem agreed and explained that such disclosures were unintentionally omitted from the Success Story Pins.
The takeaway is clear: just like on any other social media, companies should be wary of what consumers are doing and saying on their behalf when running an advertising campaign via Pinterest.