Clear and conspicuous: what the 2023 guides changed

On 29 June 2023 the Federal Trade Commission finalised its revisions to the Guides Concerning the Use of Endorsements and Testimonials in Advertising, codified at 16 CFR Part 255. They were the first revisions since 2009 — fourteen years in which the entire medium changed. Every section of the Guides was touched.

What the Guides are, and what they are not

This distinction decides how seriously to take them. The Endorsement Guides are not a standalone statute with its own penalties. They are the Commission's statement of how it reads Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices. Conduct that departs from the Guides is not automatically unlawful; it is conduct the Commission has told you in advance it may treat as deceptive. The enforcement happens under Section 5. The Guides tell you where the Commission will be looking.

The five things the revision was aimed at

1. Scope beyond a specific product. The Guides now reach promotion that is not pinned to one product — brand-level endorsement included.
2. Inadequate disclosures. The revision spells out what does not work, rather than only describing what does.
3. Accuracy of the endorsement itself. An endorsement has to reflect an honest opinion and actual experience, and the advertiser has to have reason to believe it does.
4. Who can be liable. Advertisers, endorsers and intermediaries. That third category is new in emphasis and it is the one that matters to anybody who places or packages promotional content for someone else.
5. Integrity of consumer reviews. Suppressing negative reviews and procuring fake ones are addressed directly.

The sentence worth memorising

“Clear and conspicuous” now carries an expanded definition: a disclosure must not be difficult to miss, and it should be communicated in the same medium as the endorsement itself. For a video with sound, that means the disclosure belongs both on screen and in the audio — said out loud, in the read, not only burned into a corner of the frame and not only typed into a description box nobody opens.

The practical test is behavioural rather than legal: if a viewer who watched normally, once, at the speed and on the device the content was made for, could finish it without having registered the relationship, the disclosure did not work. Where the text sits in the file is not the question.

Two consequences people miss

Monitoring is part of the obligation. The Commission treats advertisers as responsible for their endorsers' conduct, which means a programme with no monitoring is itself the problem, independent of any particular post.

Reposting can create liability. An advertiser may be liable for a third party's statement it did not pay for, if it reposts or republishes that statement. Taking a stranger's enthusiastic claim and putting it on your own channel makes it yours.

Why this sits on a sports desk

Because the relationships in sports media are dense and rarely labelled. A commentator with a sportsbook sponsorship, a site earning a commission on a sign-up, a highlight account paid per post — each is a material connection, and they are not the same connection, as we set out in two material connections that look identical. The industry's own voluntary rules sit on top of this federal floor, and they are in a voluntary code and what voluntary means.

Donor material on this desk: disclosure in podcasts and tip jars, referrals and editorial independence. Desk index: Standards; full index: the archive.

What we read

Every figure above comes from one of these documents. If a number is not in them, it is not in this piece.

• Arnold & Porter: the FTC's revised Endorsement Guides
• Morgan Lewis: FTC updates Endorsement Guides, proposes endorsement-related rule
• King & Spalding: FTC revamps the Guides concerning endorsements and testimonials