USA Trends and Developments Contributed by: Matthew Vittone, Frankfurt Kurnit Klein & Selz
Influencers As influencer marketing continues to be an important part of advertisers’ marketing efforts, the FTC is mak - ing it a priority to ensure that marketers’ use of influ - encers is consistent with the basic truth-in-advertising principle that endorsements must be honest and not misleading. The FTC’s current thinking is set forth in its updated Endorsement Guides. Although the Endorsement Guides provide detailed guidance to marketers on the use of endorsements in advertising, they are grounded in three basic principles. First, endorsements should reflect the endorser’s honest opinions, findings, beliefs and experiences. Second, endorsers should not make claims that an advertiser cannot make itself. In other words, when an endorser makes a claim about prod - uct performance, the advertiser should ensure that the claim reflects the generally expected performance of the product. And third, if there is a material connec - tion between and endorser and the advertiser that is not reasonably expected by the audience, then that connection should be clearly and conspicuously dis - closed. In the updated Endorsement Guides, the FTC clarified that these rules apply not only to human endorsers but also to avatars, virtual influencers, and AI-generated personas. The FTC emphasised that endorsements from synthetic characters are subject to the same standards of truthfulness and disclosure as those from real people. For advertisers, this means that if a virtual influencer is used to promote a product, any material connection (such as brand control or payment) must be clearly and conspicuously disclosed, and the vir - tual persona’s product claims must be truthful and substantiated. Additionally, a unique challenge with virtual influenc - ers is that ‒ unlike human endorsers ‒ they cannot actually use or experience a product. This makes it impossible for their statements to reflect a genuine personal opinion or experience. How then can a virtual influencer’s statements reflect their truthful and honest experiences? Applied to virtual influencers, the principles of the Endorsement Guides require brands to avoid imply -
AI, the advertiser must be prepared with proper sub - stantiation. Just like any other performance claims, AI claims must be truthful and substantiated, and any necessary qualifications should be clearly and con - spicuously disclosed. False or misleading claims Under US advertising law, it is a foundational rule that advertisers must have a reasonable basis for their claims and that claims must not be false or mislead - ing in context. This principle remains applicable when claims are generated using AI. When using AI to generate advertising content or comparative claims, advertisers should bear in mind that AI outputs are only as good as the data they are trained on and data sets from which AI content is gen - erated may be unrepresentative or inaccurate. It is therefore important for advertisers to review any AI- generated content to ensure that it does not contain false or misleading claims or misrepresent a product’s performance. AI is not a substitute for substantiation – rather, advertisers are still responsible for support - ing any claims with reliable evidence and for disclos - ing limitations where necessary to prevent consumer deception. Transparency In the USA, there is no general requirement to disclose that content was created using AI. Although different approaches can be seen around the world, the US framework by comparison is more situational. Instead, the duty to disclose arises where non-disclosure would make an ad misleading or deceptive under the FTC Act or related state consumer protection statutes. The FTC has long made clear in its Guides Concerning the Use of Endorsements and Testimonials in Adver - tising (the “Endorsement Guides”) and native adver - tising guidance ‒ and more recently in its AI-focused posts ‒ that consumers should not be misled about the nature, source or sponsorship of advertising content. Accordingly, if the use of AI is material to consumer perception, disclosure is required. By way of example, if AI-generated or simulated content is used to depict product performance and consumers could reason - ably interpret those depictions as real, the advertiser must clearly disclose that the content is simulated.
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