(e.g., if it was established and operated by an automotive parts manufacturer), the
endorsement would be deceptive. Even if the American Institute of Science is an
independent bona fide expert testing organization, the endorsement may nevertheless be
deceptive unless the Institute has conducted valid scientific tests of the advertised products
and the test results support the endorsement message.
Example 4: A manufacturer of a non-prescription drug product represents that its product
has been selected over competing products by a large metropolitan hospital. The hospital
has selected the product because the manufacturer, unlike its competitors, has packaged
each dose of the product separately. This package form is not generally available to the
public. Under the circumstances, the endorsement would be deceptive because the basis
for the hospital’s choice – convenience of packaging – is neither relevant nor available to
consumers, and the basis for the hospital’s decision is not disclosed to consumers.
Example 5: A woman who is identified as the president of a commercial “home cleaning
service” states in a television advertisement that the service uses a particular brand of
cleanser, instead of leading competitors it has tried, because of this brand’s performance.
Because cleaning services extensively use cleansers in the course of their business, the ad
likely conveys that the president has knowledge superior to that of ordinary consumers.
Accordingly, the president’s statement will be deemed to be an expert endorsement. The
service must, of course, actually use the endorsed cleanser. In addition, because the
advertisement implies that the cleaning service has experience with a reasonable number of
leading competitors to the advertised cleanser, the service must, in fact, have such
experience, and, on the basis of its expertise, it must have determined that the cleaning
ability of the endorsed cleanser is at least equal (or superior, if such is the net impression
conveyed by the advertisement) to that of leading competitors’ products with which the
service has had experience and which remain reasonably available to it. Because in this
example the cleaning service’s president makes no mention that the endorsed cleanser was
“chosen,” “selected,” or otherwise evaluated in side-by-side comparisons against its
competitors, it is sufficient if the service has relied solely upon its accumulated experience
in evaluating cleansers without having performed side-by-side or scientific comparisons.
Example 6: A medical doctor states in an advertisement for a drug that the product will
safely allow consumers to lower their cholesterol by 50 points. If the materials the doctor
reviewed were merely letters from satisfied consumers or the results of a rodent study, the
endorsement would likely be deceptive because those materials are not what others with
the same degree of expertise would consider adequate to support this conclusion about the
product’s safety and efficacy.
§ 255.4 Endorsements by organizations.
Endorsements by organizations, especially expert ones, are viewed as representing the judgment of
a group whose collective experience exceeds that of any individual member, and whose judgments
are generally free of the sort of subjective factors that vary from individual to individual.
Therefore, an organization’s endorsement must be reached by a process sufficient to ensure that
the endorsement fairly reflects the collective judgment of the organization. Moreover, if an
organization is represented as being expert, then, in conjunction with a proper exercise of its