After a long 13 months of waiting, the FTC finalized its new version of the Guides Concerning the Use of Endorsements and Testimonials in Advertising (commonly known as the "Endorsement Guides"). The new version will look familiar to people who studied last year's draft, but it's worth pointing out some of the differences from the prior version of the Guides -- last revised in 2009 -- that reflect many of the FTC's current enforcement priorities.

In its press release, the FTC highlights important principles addressed in the revised Guides, including:

1) Reviews

• The Endorsement Guides include examples that address incentivized reviews, reviews by employees and fake reviews, and also clarify in §255.2(d) that when advertisers procure, suppress, boost, organize, publish, up/downvote or edit consumer reviews, those actions must not distort or misrepresent what customers actually think of their products.

2) Clear and Conspicuous

• Despite pushback from some commenters, the FTC stuck to its guns, writing "for online disclosures to be effective, they must be unavoidable." §255.0(f) provides the new definition of "clear and conspicuous," which means that "a disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers." If a claim is made visually, the disclaimer must be visual; if made through audible means, the disclaimer must be audible (and, not surprisingly, if the claim is made both visually and audibly, the disclaimer must be presented in both ways as well). In addition, one of the newly adopted examples makes clear that social media platforms' built-in disclosure tools might not constitute an adequate disclosure.

3) New Definition of "Endorsement"

• The definition is expanded to mean "any advertising, marketing, or promotional message for a product that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser." This can include verbal statements, tags in social media, use of virtual influencers or even the name or seal of an organization.

4) Clarifying Liability

• Liability reaches not just advertisers but also the endorsers themselves, and intermediaries (such as agencies, PR firms, etc.) involved in disseminating claims. All of these parties have an obligation to understand, follow and monitor compliance with the Guides.

It's worth noting that the FTC also put out an updated version of its FAQs related to the Endorsement Guides, with over 40 new questions that help clarify some of the changes to the Guides. For more in-depth analysis, keep an eye out for a longer alert, but in the meanwhile, Loeb & Loeb's experienced team is always available to audit your programs or monitor compliance with an eye toward the new guidance.