advertising guidelines and guardrails

Privileged and ConfidentialAttorney Work Product02/25/2020 TS DRAFT

ADVERTISING GUIDELINES AND GUARDRAILS

TABLE OF CONTENTS(continued)

Page

-2-

I. ADVERTISING GUIDELINES 1

A. Pre-Approval of Advertising Claims 1

B. Types of Advertising Claims 1

1. Express Claims 1

2. Implied Claims 2

C. Substantiation of Claims 2

D. Puffery 4

E. Fair, Truthful, and Not Deceptive Claims 4

F. Clear and Conspicuous Disclosures 5

II. GUARDRAILS FOR SPECIFIC CLAIMS AND ADVERTISEMENTS 16

A. Pricing and Timing 16

1. Free Claims 16

2. Price Reductions or Savings Claims—e.g., “Sale” or “Savings Up To 17

3. “New” Product or Service Claims 18

4. Introductory Offers / Limited Time Offers 18

B. Endorsements and Testimonials 19

C. E-Mail Advertisements 20


3

FLEETCOR TECHNOLOGIES, INC. ADVERTISING GUIDELINES AND GUARDRAILS

I. ADVERTISING GUIDELINES

FleetCor Technologies, Inc. (“FleetCor” or the “Company”) is committed to advertising and marketing its products and services vigorously, fairly, and truthfully in compliance with all applicable consumer protection laws and regulations. This document – FleetCor’s Advertising Guidelines and Guardrails – is intended to ensure that all of FleetCor’s advertising and marketing efforts live up to that commitment. As a FleetCor employee, you must strictly comply with the procedures and instructions outlined below.

A. Pre-Approval of Advertising Claims

You may not make any advertising claim – whether written or oral – about a FleetCor product or service unless the claim has been pre-approved by the Company for use in connection with the product or service. To determine whether a claim has been pre-approved by the Company, you must check the product-specific claims library. The product-specific claims libraries list all pre-approved claims. They can be found on Box at: All Files > Claims and Communications Repository > 0_Approved Claims Libraries.

In making a pre-approved claim, you must use the exact language – word-for-word –provided in the product’s claims library, and you must include any disclosures that the claims library states are required to be made with the claim, and you must follow any other usage notes/restrictions outlined in the claims library.

If a claim you would like to make about a product is not included in the product’s claims library, then you may not make the claim. You can, however, request that the relevant line of business President, or his or her designee, submit the claim to Legal for approval and inclusion on subsequent iterations of the product’s claims library.

B. Types of Advertising Claims

Generally, an advertising claim is a statement made in advertising about the benefits, characteristics, and/or performance of a product or service designed to persuade a customer to make a purchase.1 All claims in advertising are either express or implied.

1. Express Claims

An express claim makes a clear and unambiguous representation about a product or service. Examples of express claims include:

Industry standard procedures, customer performance surveys, technical specifications, and objective expert opinion.

1 American Marketing Association, AMA Dictionary, available at https://marketing-dictionary.org/a/advertising-claim/.

https://marketing-dictionary.org/a/advertising-claim/

https://marketing-dictionary.org/a/advertising-claim/


4

“The Acme Smart TV weighs 75 pounds.”

“The Acme Smart TV has over three times the data capacity as the leading TV.”

2. Implied Claims

Implied claims are claims implied by the entire context of the advertisement. Implied claims include all reasonable interpretations of an advertisement, including messages the Company intended to convey as well as reasonable interpretations that the Company may not have intended to convey. Examples of implied claims include:

“Acme Spray kills the germs that cause mold” – this advertising claim contains an implied claim that the product will prevent mold.

Television commercial for hair-thickening product for men showing “before” and “after” photos in which the “after” photos showed hair that was not only thicker, but depicted hair growth in places that had previously been bald – while the express claims in the advertisement did not say the product could re-grow hair, the claim was implied from the advertisement.2

C. Substantiation of Claims

Before you distribute an advertisement to the public, you must be able to substantiate all claims in the advertisement – express or implied – with competent and reliable evidence. In other words, you must have appropriate evidence to support any reasonable interpretation of claims in the Company’s advertisements before making the claims.3 The only advertising claims that do not require substantiation are claims that constitute “puffery,” which are discussed below.

Competent and reliable evidence generally consists of tests, analyses, research, studies, or other evidence that is based on the experience of professionals in the relevant area, conducted and evaluated in an objective manner by qualified individuals, and conducted utilizing procedures generally accepted in the industry to produce reliable results.

You must follow these steps to determine whether you have enough substantiation to make an advertising claim:

1. Identify the claims made in the advertisement. Regardless of whether the claims are express or implied, you must be able to substantiate all objective claims that a reasonable customer might take away from the advertisement.

2 Youth Enhancement Sys., Inc. (ProCede), Case No. 4423, NAD Case Reports (Dec. 9, 2005). 3 See FTC Policy Statement on Advertising Substantiation (Mar. 11, 1983), available at

https://www.ftc.gov/public-statements/1983/03/ftc-policy-statement-regarding-advertising-substantiation, appended to Thompson Medical Co., 104 F.T.C. 648, 839 (1984), aff’d, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987).

https://www.ftc.gov/public-statements/1983/03/ftc-policy-statement-regarding-advertising-substantiation


5

2. Determine what evidence you need to support the claim. If the claim does not specify the basis of the claim (i.e., that it is based on a survey, report, etc.), then you must have competent and reliable evidence to make the claim.

Example: If a claim states that purchase of a product or service will “save you 3%,” then you must have competent and reliable evidence showing that customers will see such savings.

Example: If a claim states that purchase of a product or service will “save up to 5 to 10 cents per gallon,” then you must have competent and reliable evidence showing that customers will see such savings.

The average customer is expected to be able to reasonably achieve any touted results under normal conditions. If you are relying on test or research results to make a claim, then you should tailor the test or research to support the specific claim. When relying on test results, they should be statistically significant at the 95% confidence level.

3. Review the following factors to determine the level of competent and reliable evidence needed to substantiate a claim:

o The type of product involved. For food or drug products or consumer products that could affect safety or health, advertisers must possess a higher level of substantiation. You must have at least two adequate and well-controlled double-blind clinical studies to substantiate such claims.

o The type of claim being made. Dietary, medical, health, safety, or efficacy claims require a greater level of substantiation because of the importance of such claims to consumers and their inability to evaluate them.

o The benefits if the claim is true and the consequences if the claim is false. If the benefits of a true claim are high, but the costs of a false claim are also substantial, then a relatively high level of substantiation is appropriate.4

o The ease and cost of developing substantiation for the claim. If the cost of developing substantiation is high, less substantiation is required (unless the consequences of a false claim are serious).

o The level of substantiation that experts in the relevant field would agree is reasonable. Substantiation must meet contemporary professional standards. For example, a claim is properly substantiated by one clinical study if experts in the relevant field agree that a single study is sufficient.5

D. Puffery

4 FTC Bureau of Consumer Protection, Advertising Substantiation Program: Analysis of Public Comments and Recommended Changes, at 31.

5 See Removatron Int’l Corp. v. FTC, 884 F.2d 1489 (1st Cir. 1989).

alyssa.callahan

Highlight

alyssa.callahan

Highlight

alyssa.callahan

Highlight


6

A claim that constitutes “puffery” does not require substantiation. “Puffery” generally means (a) statements that are so subjective that they cannot be measured or otherwise proven to be true or false, or (b) representations that, even if subject to proof, are so exaggerated that no reasonable customer is likely to rely upon them.

Exercise caution before categorizing claims as “puffery” – often there is an implied claim being made that does require substantiation. Consider the following criteria to differentiate a claim that requires substantiation and one that is mere “puffery”:

General vs. Specific Claim. General superiority claims are more likely to be considered puffery than superiority claims relating to a specific product attribute, or a direct comparison to a competing product.

Example: The advertisement “Better Ingredients, Better Pizza” is puffery by itself generally. However, it could be considered a specific claim – and thus, require substantiation – if used in advertising that promoted specific ingredients.6

Capable of Measurement. Puffery claims generally are not capable of measurement or verification.

Example: A claim that our cards have the best savings rate on the market would not be considered puffery, but rather a claim that is capable of measurement, and thus, require substantiation.

Fact or Opinion. Claims expressed as an opinion and not as a representation of fact are more likely to be puffery; the key issue is whether a reasonable customer would understand the claim to be an opinion, rather than a fact.

Example: A claim that a coffee shop’s coffee is the “World’s Best Coffee” is puffery because it is not an objectively provable fact capable of substantiation.

E. Fair, Truthful, and Not Deceptive Claims

All claims in our advertisements must be fair, truthful, and not deceptive.

An advertising claim is unfair if it causes, or is likely to cause, substantial harm to consumers. Substantial harm most often involves a monetary harm to a consumer, such as when an advertiser coerces a customer into purchasing unwanted goods and services. The harm must be an injury that the customer could not reasonably have avoided.7 In addition, an advertising claim is unfair if the advertisement is unethical or unscrupulous.

An advertisement is deceptive if it contains a representation, or omits information, that (1) is likely to mislead consumers acting reasonably under the circumstances, and (2) the representation or omission is material.8 As a result, our advertisements must convey all

6 See Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489 (5th Cir. 2000).7 See FTC Policy Statement on Unfairness (Dec. 17, 1980), available at

https://www.ftc.gov/public-statements/1980/12/ftc-policy-statement-unfairness, appended to International Harvester Co., 104 F.T.C. 949, 1070 (1984).

https://www.ftc.gov/public-statements/1980/12/ftc-policy-statement-unfairness

alyssa.callahan

Highlight

alyssa.callahan

Highlight

alyssa.callahan

Highlight


7

information that is material to each claim made in an advertisement. Claims about price, rates, features, performance, safety, and effectiveness are generally considered material. Additionally, any restrictions on an offer, such as date or geographic limitations or restrictions on the number of purchases, should be considered material and disclosed in the advertisement.

If a reasonable customer would find a claim misleading without the disclosure of additional information, then you must disclose the additional information in a “clear and conspicuous” manner. The “clear and conspicuous” disclosure requirement is discussed below.

F. Clear and Conspicuous Disclosures

If a disclosure is required to prevent an advertising claim from being misleading, then the disclosure must be clear and conspicuous.9 This means that the disclosure must be noticeable, easily understandable by the intended audience, and readable.10 You must consider the entire advertisement – not just the disclosure itself – when evaluating whether the disclosure satisfies these requirements.

You should consider the following guidelines to determine whether a particular disclosure is “clear and conspicuous”:

Proximity and placement of the disclosure. Place a disclosure or qualifier as close to the claim it qualifies or other relevant information. It should not contradict or be inconsistent with the claim(s) it qualifies.

8 See FTC Policy Statement on Deception (Oct. 4, 1983), available at https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf, appended to Cliffdale Assocs., Inc., 103 F.T.C. 110, 174 (1984); see also, e.g., FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994).

9 FTC, .com Disclosures: How to Make Effective Disclosures in Digital Advertising (“.com Disclosures”) (Mar. 2013), at 5, available at www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf.

10 See Aug. 30, 2019 Draft Consent Order at 2-3; cf. Hyde v. RDA, Inc., 389 F. Supp. 2d 658, 667 (D. Md. 2005) (explaining that, in the context of the Fair Credit Reporting Act, Truth in Lending Act, and Uniform Commercial Code, “clear and conspicuous” means “there must be something about the way that the notice is presented in the document such that the consumer’s attention will be drawn to it.”) (quoting Cole v. U.S. Capital, 389 F.3d 719, 731 (7th Cir. 2004)).

The disclosure “imitation” needs to accompany the triggering term “pearl,” so that you do not mislead consumers about the type of pearls being sold.

The “imitation” disclosure would not be effective if it was separated from the word “pearl” or placed on a different page.

https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf

http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf

http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf


8

o Do not use a hyperlink for a disclosure that is an integral part of a claim or inseparable from a claim, especially the existence and nature of additional fees to a product’s basic cost. Where practicable, place the disclosure on the same page and close to the claim, and make it sufficiently prominent so that the claim and the disclosure are read at the same time, without referring the customer somewhere else to obtain the important information.11

11 Id. at 10.

The hyperlink “Important Health Information” leads to a disclosure, “Frost-a-tron may not keep perishable food items cold enough to prevent the growth of bacteria when the temperature is over 80ºF, such as in a hot car. Use in these conditions could lead to food-borne illness.” Frost-a-tron should not hide the fact that the cooler might not keep food cold enough to prevent the growth of dangerous bacteria behind a hyperlink, even one labeled “Important Health Information.” This is especially true when the cooler is promoted for keeping perishable food fresh and cold on road trips.


9

o Do make the disclosure unavoidable if scrolling is necessary for a customer to view a disclosure; do not let consumers proceed further with a transaction, e.g., click forward, without scrolling through the disclosure.12 So, when putting a disclosure in a place where consumers might have to scroll in order to view it, use text or visual cues to alert consumers that more information is available and encourage consumers to scroll, and avoid formats that discourage scrolling.

12 .com Disclosures, at 9.

This ad must disclose that the diamond weights are not exact and that a 3/4 carat diamond may weigh between .72 and .78 carats. The disclosure, however, is separated by blank space after the textual description of the product. This disclosure is insufficient, because even consumers who scroll down to the end of the text (see second screen) are likely to miss the disclosure.


10

o Do not place a disclosure in a different column of a webpage from the claim it modifies. Because of their small screens, smartphones (and some tablets) potentially require horizontal, as well as vertical, scrolling. Optimizing a website for mobile devices will eliminate the need for consumers to scroll right or left, although it will not necessarily address the need for vertical scrolling.13

o Do make hyperlinks obvious if hyperlinks are necessary to disclose the

information. Make it clear to a reasonable customer that they can click on the hyperlink to get more information.14

13 Id. at 10.14 Id. at ii.

Consumers might not expect a monthly service fee for cameras used to monitor their homes over the Internet, so a disclosure is necessary to prevent the ad from being misleading. Placing the disclosure in a different column than the camera price it qualifies, rather than directly under the price information, makes it less likely that consumers viewing this webpage on a desktop computer would notice the disclosure here.


11

Because the advertiser’s assertion that “Satisfaction is guaranteed” implies that dissatisfied consumers can get a full refund of the purchase price, the advertiser must clearly and conspicuously disclose any restocking fees.

The hyperlink “Restocking fee applies to all returns” leads to the disclosure, “If you return the Frost-a-tron within 30 days there is a restocking fee of $19.95. After 30 days and before 90 days, the restocking fee is $29.95. After 90 days, the restocking fee is $49.95. Shipping and handling fees are non-refundable. No COD on returns.” The details in this return policy are too complex to practicably disclose next to the guarantee. But the detailed hyperlink label adequately conveys the nature and relevance of the information to which it leads.

Note that if the hyperlink simply said “Disclaimer,” that would not adequately convey that the information in the hyperlink concerns the restocking fees applied to all returns.


12

o Do label the hyperlink to convey the importance, nature, and relevance of the information to which it leads.15

o Do label the hyperlink to convey why a claim is qualified or the nature of the disclosure (as opposed to a link that says “disclaimer”). Do not hide the ball.16

15 Id.16 Id.


13

o Do place the hyperlink close to the claim or other relevant information.17

o Do make sure that the hyperlink takes consumers directly to the disclosure; do not make consumers search a click-through page or navigate to other places to find the disclosure.18

o Do disclose pricing before the customer makes the decision to buy, e.g., before clicking on an “order now” button or a link that says “add to cart.”19

17 Id.18 Id. at 11-13. 19 Id. at 14.

This ad must disclose that the diamond weights are not exact and that a 3/4 carat diamond may weigh between .72 and .78 carats. Even if the hyperlink “3/4 Ct.” goes to a page that lists the weight range, this disclosure is not clear and conspicuous.

Underlining “3/4 Ct.” may or may not indicate to consumers that this is a hyperlink. Even if consumers recognize it as a hyperlink, the label here does not preview the information to which that link leads — in this case, to a disclosure that diamond weights are not exact, that the diamonds sold by this merchant may vary in weight, and that the advertised 3/4 carat diamonds might each actually weight less than 0.75 carats.


14

Prominence of the disclosure. Make the disclosure prominent in size, type, and color. If possible, use graphics to make the disclosure more prominent.

o Do make a visual disclosure stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood, by its size, contrast, location, length of time it appears, and other characteristics.20

20 Aug. 30, 2019 Draft Consent Order at 3.

If the purchase or use of the advertised product entails significant additional charges beyond the basic price of the product and consumers reasonably might not expect those charges, disclose them prominently on the same page as, and immediately adjacent to, statements of the product’s basic cost.

In this example, disclosure of the existence and amount of a monthly monitoring fee only on the check-out page would likely be insufficient to meet the clear and conspicuous disclosure standard; this fee should be clearly stated next to the price of the cameras on the preceding website page that provides that price information.

Disclosure on the check-out page of the sales tax the consumer owes on this purchase, as well as reasonable shipping and handling charges, would not be problematic, because consumers expect these charges.


15

Both disclosures in this advertisement appear in text that contrasts poorly with the background of the page and they therefore are both easy to miss. Because the disclosures are not prominent, they are not clear and conspicuous.


16

o Do make disclosures at least as large as the claim to which they relate and in color that contrasts with the background to emphasize the text of the disclosure and make it more noticeable.21

o Do not bury disclosures in long paragraphs, particularly those with unrelated text.22

o Do use a plain-language heading to call attention to the disclosure.23

o Do use a type-face and size that are easy to read, and use boldface or italics for key words.24

o Do provide wide margins and ample line spacing, if possible.25

21 .com Disclosures, at 17.22 Id. at 18.23 See 12 C.F.R. § 1016.3(b)(2)(ii).24 Id.


17

o Do use distinctive type size, style, and graphic devises, such as shading or sidebars, when in a form that combines the disclosure with other information.26

Distracting factors. Do not include elements in an advertisement that may cause consumers to overlook the disclosure or distract them from it.

25 Id.26 Id.

The blogger in this example obtained the paint she is reviewing for free and must disclose that fact. Although she does so at the end of her blog post, there are several hyperlinks before that disclosure that could distract readers and cause them to click away before they get to the end of the post. Given these distractions, the disclosure is not clear and conspicuous.


18

o Do not let other parts of an advertisement get in the way of the disclosure. Graphics, sound, other text, links that lead to other screens or sites, or “add to cart” or “submit” buttons may be distracting and lead consumers not to notice, read, or listen to the disclosure.27

27 .com Disclosures, at 19.


19

Repetition of the disclosure. Repeat the disclosure more than once if necessary to convey a non-deceptive message to consumers.

o Do repeat disclosures on lengthy sites and applications as necessary, particularly where consumers can access a website in different ways that may result in landing on different parts of the site upon access.28

o Do repeat the disclosure if the claim requiring qualification is repeated throughout the advertisement.29

Understandable language. Make the disclosure understandable to the intended audience and as simple and straightforward as possible.

o Do use clear language and syntax and avoid legalese and technical jargon.30

o Do present information in clear, concise sentences, paragraphs, and sections.31

o Do use short explanatory sentences or bullet lists whenever possible.32

o Do use definite concrete, everyday words and active voice whenever possible.33

o Do not use multiple negatives.34

o Do not use explanations that are imprecise and readily subject to different interpretations.35

II. GUARDRAILS FOR SPECIFIC CLAIMS AND ADVERTISEMENTS

A. Pricing and Timing36

The Company may offer sales or other price reductions or incentives to induce customers to purchase its products or services. When making such offers in advertisements,

28 Id. at iii.29 Id. at 19.30 Id. at 21; see also 12 C.F.R. § 1016.3(b)(2)(i).31 12 C.F.R. § 1016.3(b)(2)(i).32 Id.33 Id.34 Id.35 Id.36 Advertisements that make price claims or that offer a sale are regulated in accordance with the

FTC’s Guides Against Deceptive Pricing. See 16 C.F.R. §§ 233.1 et seq.

In this example, an animated spokesperson moving around and discussing the benefits of the Eye on Your Home monitoring cameras might distract consumers from the disclosure of the monthly monitoring fee, making the disclosure insufficient.


20

set forth clearly and conspicuously, at the outset of the offer, all terms and conditions upon which one can receive and retain the offer. A reasonable customer must be able to understand the terms and conditions of the offer. When making these types of claims, you must follow the below guardrails to ensure that customers are not misled:

1. “Free”37 Claims

Consumers understand that, except in the case of introductory offers in connection with the sale of a product or service, an offer of “free” merchandise or service is based upon a regular price which consumers must purchase in order to avail themselves of that which is represented to be “free.” In other words, when the purchaser is told that an article is “free” if another article is purchased, the word “free” indicates that the purchaser is paying nothing for that article and no more than the regular price for the other.38

Do disclose all terms and conditions of a free offer near the word “free.” A disclaimer alone is insufficient; the offer must clearly disclose all conditions for obtaining the “free” product or service at the outset of the offer (i.e., in close conjunction with the offer of “free” merchandise or service).39

Example: You must disclose if a product or service is “free” with the purchase of another product or service.

Do not increase the usual price of a product or service purchased with a “free” product or service to recoup the loss on the free product where the “free” product or service is being offered with the purchase of another product or service.40

Do not increase the price of the product or service with which a free item is offered within 30 days prior to the offer.41

Do limit in time a “free” offer in connection with the introduction of a new product or service.

o In any 12-month period, do not run a “free” offer for a single product or service for more than 6 months, do not conduct it more than 3 times, and do not exceed 50% of the total volume of all sales of that product or service.42

o Allow at least 30 days between separate “free” offers for a single product or a single kind of service.43

37 Claims that a product or service is “free” are subject to the FTC’s “Guide Concerning the Use of the Word ‘Free’ and Similar Representations.” 16 C.F.R. § 251.1.

38 16 C.F.R. § 251.1(b)(1).39 Id. at § 251.1(c); see also 16 C.F.R. § 233.4(c) (“whenever a ‘free,’ ‘2–for–1,’ ‘half-price sale,’

‘1¢ sale,’ ‘50% off’ or similar type of offer is made, all the terms and conditions of the offer should be made clear at the outset”).

40 16 C.F.R. § 233.4(b).41 16 C.F.R. § 251.1(b)(2). 42 Id. at § 251.1(h).43 Id.


21

Do expressly state the date the “free” offer ends.

Do not substitute offers of “free” products or services with similar words such as “gift,” “given without charge,” “bonus,” or other words or terms which tend to convey the impression to the consuming public that an article of merchandise or service is “free.”44

2. Price Reductions or Savings Claims – e.g., “Sale” or “Savings Up To”

A price reduction or savings claim for a specific product or service must be based on either (a) the Company’s usual and customary price for the product or service in the regular course of business; (b) the usual and customary retail price of the specific product or service sold by other businesses in the industry; or (c) the current selling price of a comparable product or service.

Do not base a price reduction or savings claim on an artificial mark-up above the usual retail price or otherwise attach strings to the offer.

Do not use the word “sale” unless there is a meaningful price reduction.

Do expressly state the date the sale or savings ends.

Do state both the minimum and maximum savings without undue or misleading display of the maximum for claims stating that savings are “up to” a certain percent. Ensure that the number of products or services available at the maximum savings is a significant percentage (i.e., 10% of the offered products or services).

Do ensure that claims advertising a range of savings (i.e., “save 5 to 10 cents per gallon”) offer at least a certain guaranteed percentage of the product or services (i.e., 10%) at the maximum savings amount.

Do base price comparisons – including any comparison to our former prices – on the Company’s current prices.

3. “New” Product or Service Claims

Do not use the term “new” unless the product or service is entirely new or has been changed in a functionally significant manner.

o If the packaging, size, dosage, or some other feature of the product is new, that may be an acceptable circumstance to claim that the product is “new.” In such cases, state what is new about the otherwise “old” product.

o A product can be claimed “new” even if it has been available in limited test markets – i.e., for less than 15% of the country—for longer than six months.

44 Id. at § 251.1(i).

alyssa.callahan

Highlight

alyssa.callahan

Highlight


22

o Do not claim a product, service, or feature is “new” six months after the product, service, or feature has achieved substantial distribution.

4. Introductory Offers / Limited Time Offers

Do increase introductory offer prices to a “regular” price, in good faith, at a later date.

Do not use a “free” offer in connection with the introduction of a new product or service offered for sale at a specified price unless the offeror expects, in good faith, to discontinue the offer after a limited time and to commence selling the product or service promoted, separately, at the same price at which it was promoted with the “free” offer.

Do not represent that the price is for one item and that the other is “free” unless the offeror expects, in good faith, to discontinue the offer after a limited time and to commence selling the product or service promoted, separately, at the same price at which it was promoted with the “free” offer.

Do ensure that a time-limited offer is truly limited to the period specified in the advertisement.

B. Endorsements and Testimonials45

An endorsement is any advertising message that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization.46 Like all advertisements, endorsements must be truthful and not misleading. Additionally, the advertiser must possess and rely upon adequate substantiation, including, when appropriate, competent and reliable scientific evidence, to support such claims made through endorsements.47

When making endorsements in advertisements, you must follow the below guidelines to ensure consumers are not misled:

Ensure that the endorsement reflects the honest opinions, beliefs, findings, or experiences of the endorser.48

Ensure that the endorser maintains his view or continues to use the product or service, particularly when the product or service has changed since the endorsement was made. Check in with the endorser at reasonable intervals to make sure the endorser still holds those views.49

45 Advertisements that include endorsements and/or testimonials are regulated in accordance with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. See 16 C.F.R. § 255.

46 16 C.F.R. § 255(b).47 Id. at § 255.2(a).48 Id. at § 255.1(a). 49 Id. at § 255.1(b).


23

o To determine whether it is reasonable to check in with the endorser, consider: (1) whether there is new information on the performance or effectiveness of the product; (2) whether there is a material alteration in the product; (3) whether there are changes in the performance of competitors’ products; and (4) the Company’s contract commitments.50

When the advertisement represents that the endorser uses the product or service, then the endorser must have been an actual user of it at the time the endorsement was given. Additionally, the Company may continue to run the advertisement only so long as it has good reason to believe that the endorser remains an actual user of the product or service.51

Disclose any material connection that exists between the endorser and the Company, unless it is reasonably expected by the audience. Present such disclosure clearly and conspicuously.52

o To determine whether a material connection exists, consider: (1) whether the endorser is compensated by the Company; (2) whether the product was provided for free; (3) the terms of any agreement between the endorser and the Company; (4) the length of the relationship between the endorser and the Company; (5) the previous receipt of products, or the likelihood of future receipt of products; and (6) the value of the products received.53

C. E-Mail Advertisements

The Company’s advertisements via e-mail cannot be false or misleading.54 When making advertising claims in e-mails, you must follow the below guardrails:

Do not use false or misleading header information. Ensure that your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and e-mail address – are accurate and identify the person or business who initiated the message.55

Do not use deceptive subject lines. The subject line must accurately reflect the

content of the message.56

Do identify the commercial e-mail message as an advertisement or solicitation.57

50 Id.51 Id. at § 255.1(c). 52 Id. at § 255.5.53 Id. 54 See Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”)

enacted by Congress in 2003 to regulate unsolicited commercial e-mail. The Act applies to all commercial e-mail messages, whether they are sent to individual consumers or businesses.

55 FTC, CAN-SPAM Act: A Compliance Guide for Business, (Mar. 2009), available at https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business.

56 Id.57 Id.

https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business


24

Do tell recipients where you are located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.58

Do tell recipients how to opt out of receiving future e-mail from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting e-mail from you in the future. Craft the notice in a way that is easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity.59

o Do not require recipients to do anything more than reply to the e-mail or visit a single web page in order to opt out.

Example: If you provide a menu of opt-out options, include an option to opt out of all commercial e-mail messages from the Company.

o Do not charge a fee or require the recipient to give you any personally identifying information beyond an e-mail address in order to opt out.

Do honor opt-out requests promptly.60

o The opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message.

o The opt-out request must become effective within 10 business days and remain valid until the recipient affirmatively opts back into receiving commercial e-mail messages from the Company.

o Once people have told you they do not want to receive more messages from you, you cannot sell or transfer their e-mail addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.

Do scrub the mailing list against the “do not e-mail” list at the last possible, commercially reasonable moment before sending your commercial message.61

Do monitor what others are doing on your behalf. Make sure there are written contracts with third-party service providers, including affiliate marketers, that clearly set out each party’s responsibilities for compliance and appropriate and adequate remedies for non-compliance.62

58 Id.59 Id.60 Id.61 Id.62 Id.


25


26

REVISION HISTORY

REVISION NAME DATE

Initial Publication (v1.0)

advertising guidelines and guardrails

Documents