USA Law and Practice Contributed by: Katelyn Patton, Frankfurt Kurnit Klein & Selz
is the generally expected performance of the prod - uct. Third, if there is a material connection between the endorser and the advertiser that is not reason- ably expected by the audience, then that connection should be clearly and conspicuously disclosed. The FTC also expects advertisers to monitor their endorsers to ensure that their endorsements comply with the law. It also expects advertisers to take appro - priate action when said endorsements do not. 2.6 Environmental Claims In addition to general laws prohibiting false advertis - ing, standards for making environmental claims are set forth in the FTC’s “Guides for the Use of Envi - ronmental Marketing Claims” (the “Green Guides”) as well as various state laws governing specific envi - ronmental marketing practices. The Green Guides provide detailed guidance on the making of many different environmental marketing claims, including claims such as “recyclable”, “biodegradable”, “com - postable”, and made from “renewable materials”. The Green Guides also caution against making unqualified general environmental benefit claims (such as “earth- friendly”), given that doing so may communicate a variety of claims that cannot be substantiated. The FTC is currently undertaking a review of the Green Guides. Revised guidance is forthcoming. 2.7 Disclosures As a general matter, in order for a disclosure in adver - tising to be effective, it should be “clear and conspicu - ous”. This means that the disclosure should be eas - ily seen, read and understood by consumers. More recently, the FTC has further articulated the “clear and conspicuous” standard by saying that disclosures should be “difficult to miss” and – when disclosures are made online – they should be “unavoidable”. 2.8 Other Regulated Claims There are many other types of advertising claims that are that are subject to specific federal or state law requirements. Marketers are advised to consult counsel in the USA before launching advertising cam - paigns here.
One area of particular concern to the FTC is when marketers claim that their products are made in the USA. The FTC’s “Enforcement Policy Statement on US Origin Claims” says that, in order for a marketer to make an advertising claim that a product is made in the USA, the marketer must be able to substantiate that the product is “all or virtually all” made in the USA. This standard was also recently codified in the FTC’s Made in USA Labelling Rule. 3. Limitations and Special Laws 3.1 Representation and Stereotypes in Advertising Issues related to stereotyping and diversity in adver - tising are not generally regulated (except to the extent that other laws are violated, such as laws prohibiting discrimination in employment or housing). Television network and other media platforms include restric - tions on the use of negative stereotypes, and negative stereotyping is generally prohibited by US self-regula - tory standards as well. By way of example, the Nation - al Advertising Division standards address “national advertising that is misleading or inaccurate due to its portrayal or encouragement of negative harmful social stereotyping, prejudice, or discrimination”. 3.2 Children The primary guidance related to advertising to chil - dren is contained in the “Self-Regulatory Guidelines for Children’s Advertising” issued by the Children’s Advertising Review Unit (CARU), which is a division of BBB National Programs. The CARU guidelines apply to national advertising (in any medium) that is primarily directed at children under the age of 13. The key underlying principle of the guidelines is that advertisers have special respon - sibilities to children. The guidelines address a variety of issues, including advertising claims, product dem - onstrations, disclaimers, the use of endorsers and influencers, the blurring of advertising and entertain - ment content, and unsafe and inappropriate advertis - ing.
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