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Friday, November 06, 2009

The fate of Jared the Subway guy and your law school's website

Last month, the Federal Trade Commission revised the Guides Concerning the Use of Endorsements and Testimonials in Advertising.  A cursory look at the media coverage of the revisions shows that the changes  requiring bloggers to make disclosures when endorsing products generated the most noise.

The revisions to the rules on "Consumer Endorsers" received comparatively little attention. Here we altered something which affects our commercial culture much more deeply.  From this point forward, if a consumer endorses a product in a commercial, demonstrating an atypical result, the advertiser must be prepared to declare empirically what the typical result would be. The advertiser also has the option of displaying an atypical consumer endorsement result with a disclaimer (e.g., results not typical; your experience may vary).  The Commission warns, however, that the advertiser should stand ready with empirical evidence to prove that consumers would expect the "typical" result after seeing the ad.

Advertisers currently using this tactic face enormous compliance costs. My hunch is that they will probably abandon the practice.  That might be okay. We may not miss the GRQ ("Get Rich Quick") industry's advertisements where "Janice R." claims she earned $90,000 with a money-making system.  Similarly, we may not miss the weight-loss company ads with the hideous "before and after" shots or their cousins in the exercise equipment business.

But was "Jared from Subway" really that bad? He was a consumer endorser, indeed. Should Subway have been forced to step on his message (beyond the disclosures that Jared also exercised and didn't eat the 12-inch meatball sub with cheddar cheese every day)?  I've noticed that Jared now appears in a more iconic way in the Subway advertising and no longer mentions his diet. He has now shifted his status to "Celebrity Endorser," covered under these same Guides; an easier place to be. 

For giggles, take a look at the student profiles on a given university's website or marketing collateral and assume that the profile constitutes an endorsement. Do the profiles leave an impression that you might classify as atypical?  Does your law school put forward profiles of students and recent alums who have had exceptional experiences or typical experiences?  Does the whole of disclosure in law school recruiting cure everything?

Posted by David Friedman on November 6, 2009 at 01:32 AM | Permalink


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Can you imagine if law schools had to be accurate, candid, and truthful when they run those blurbs with photos of telegenic students headed off to fantastic law jobs? ("Featured student not typical. You can expect to amass $100,000 in debt, have a 30% chance of failing the bar, and, if you're one of our luckier alums, work for $40,000 in a soul deadening job that you could have performed after graduating from high school.")

Posted by: skeptic | Nov 6, 2009 10:28:24 AM

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