Truth-in-Advertising 101

Shoppers awash in online choices often rely on product reviews to quell uncertainty and save themselves from decision fatigue. Customers read 5-star comments to glean the best possible outcome for a product, and exercise due diligence by checking out the 1-star reviews to figure out if they can live with the product’s supposed flaws. 

When brands include product reviews on their own website, the reviews become part of their advertising. Brands understandably want to highlight positive reviews to boost their visibility and reputation and to distinguish themselves from their competitors, but it is important for a company using product reviews as advertising to remember that they are responsible for all messages reasonably conveyed by their ads. This means that the advertiser may be responsible for the truthfulness of those reviews if they use them as testimonials or endorsements. 

Product reviews should be what they appear to be—authentic reviews that reflect the range of reactions and actual opinions of consumers. If an advertiser does not include all reviews for a product in its advertising, only cherry picking or collecting the positive reviews, then the reviews are being used as testimonials and trigger the need for independent substantiation of any claims made in those reviews.   

When BBB National Program’s National Advertising Division (NAD) considers the use of product reviews and testimonials in advertising, we apply truth-in-advertising principles. The best practices listed below explain what we mean by that and provide guidance for brands looking to use product reviews in their advertising without conveying a misleading message.

Best Practices 

1. Collect reviews reliably. Advertisers should make sure reviewers have purchased or used the product they are reviewing. Whether an advertiser uses a third-party contractor to collect reviews from purchasers or itself solicits reviews from purchasers, there should be a method to match the reviewer to a bona fide purchase or use of the product.
2. Solicit neutrally. The question asked of the reviewers should be a genuine attempt to solicit all honest opinions and not to cherry-pick only the most positive experiences. “Tell us what you think” is likely a general invitation to share any opinion. In contrast, the question “tell us why you love it” suggests that the reviewers should share only their positive responses. Encouraging only positive reviews, rather than all feedback, will mean that the reviews are not what consumers expect them to be and do not represent the full range of consumer reactions to the product.
3. Count each review only once. Reviews should be counted in a way that consumers would expect. For example, reviews gathered across multiple platforms must not be counted more than once. Likewise, if a consumer is motivated to leave a review by their 5-star liking of a shampoo, and the only possible review category combines shampoo and conditioner, the advertiser cannot count that review twice as a recommendation for both shampoo and conditioner.
4. If you do not include all consumer reactions, the reviews are testimonials. There is an important distinction between presenting all unedited, unfiltered reviews for consumers to see and read on the one hand, and filtering reviews to present select reactions, on the other. Filtering reviews to present select reactions means that the reviews are not unedited opinions of all consumers but are being used as consumer testimonials, a form of advertising. Objective claims about product performance made in testimonials and endorsements must be substantiated in the same way as if the claim were made directly by the advertiser. 
5. Show incentives. In general, consumers will assume that product reviews are independent. If a product review is incentivized – even for something as small as an entry to a sweepstakes or a $4 coupon – and consumers would not reasonably have expected the connection between the reviewer and the brand, that connection must be clearly and conspicuously disclosed nearby and repeated as necessary to avoid consumer confusion.

When questions arise about the truthfulness and accuracy of product reviews, competitors can bring challenges through one of the NAD challenge filing options: Fast-Track SWIFT, Standard, or Complex. The NAD’s industry self-regulation option provides consistency of analysis and decision-making, in contrast to the federal courts, where there is a split among circuits regarding whether failure to disclose material connections in product reviews is actionable under the Lanham Act. 

Earlier this year, the Ninth Circuit held that Ariix, LLC, a dietary supplement manufacturer, stated a claim for false advertising under the Lanham Act when it alleged that product reviews did not disclose financial connections to a competitor, NutriSearch Corp.  

In contrast, the Second Circuit dismissed a case when Casper, Inc., a mattress company, sought relief under the Lanham Act for damages flowing from the lack of disclosure of a material connection between product reviewers and the defendant-advertiser. The court dismissed the claim, stating that “§ 43 of the Lanham Act does not impose an affirmative duty of disclosure.” 

The mission of independent advertising self-regulation is to support a fair marketplace. Working towards that mission, NAD receives challenges and helps determine whether consumers are misled by advertising in a variety of contexts, including when advertisers fail to disclose material connections or when product reviews are collected or displayed in a way that conveys a misleading message. With the constant evolution of the online marketplace, advertising self-regulation applies consistent standards of truth-in-advertising to the use of consumer reviews in advertising to help protect fair competition and consumers. 

Shoppers awash in online choices often rely on product reviews to quell uncertainty and save themselves from decision fatigue. Customers read 5-star comments to glean the best possible outcome for a product, and exercise due diligence by checking out the 1-star reviews to figure out if they can live with the product’s supposed flaws. 

When brands include product reviews on their own website, the reviews become part of their advertising. Brands understandably want to highlight positive reviews to boost their visibility and reputation and to distinguish themselves from their competitors, but it is important for a company using product reviews as advertising to remember that they are responsible for all messages reasonably conveyed by their ads. This means that the advertiser may be responsible for the truthfulness of those reviews if they use them as testimonials or endorsements. 

Product reviews should be what they appear to be—authentic reviews that reflect the range of reactions and actual opinions of consumers. If an advertiser does not include all reviews for a product in its advertising, only cherry picking or collecting the positive reviews, then the reviews are being used as testimonials and trigger the need for independent substantiation of any claims made in those reviews.   

When BBB National Program’s National Advertising Division (NAD) considers the use of product reviews and testimonials in advertising, we apply truth-in-advertising principles. The best practices listed below explain what we mean by that and provide guidance for brands looking to use product reviews in their advertising without conveying a misleading message.

Best Practices 

1. Collect reviews reliably. Advertisers should make sure reviewers have purchased or used the product they are reviewing. Whether an advertiser uses a third-party contractor to collect reviews from purchasers or itself solicits reviews from purchasers, there should be a method to match the reviewer to a bona fide purchase or use of the product.
2. Solicit neutrally. The question asked of the reviewers should be a genuine attempt to solicit all honest opinions and not to cherry-pick only the most positive experiences. “Tell us what you think” is likely a general invitation to share any opinion. In contrast, the question “tell us why you love it” suggests that the reviewers should share only their positive responses. Encouraging only positive reviews, rather than all feedback, will mean that the reviews are not what consumers expect them to be and do not represent the full range of consumer reactions to the product.
3. Count each review only once. Reviews should be counted in a way that consumers would expect. For example, reviews gathered across multiple platforms must not be counted more than once. Likewise, if a consumer is motivated to leave a review by their 5-star liking of a shampoo, and the only possible review category combines shampoo and conditioner, the advertiser cannot count that review twice as a recommendation for both shampoo and conditioner.
4. If you do not include all consumer reactions, the reviews are testimonials. There is an important distinction between presenting all unedited, unfiltered reviews for consumers to see and read on the one hand, and filtering reviews to present select reactions, on the other. Filtering reviews to present select reactions means that the reviews are not unedited opinions of all consumers but are being used as consumer testimonials, a form of advertising. Objective claims about product performance made in testimonials and endorsements must be substantiated in the same way as if the claim were made directly by the advertiser. 
5. Show incentives. In general, consumers will assume that product reviews are independent. If a product review is incentivized – even for something as small as an entry to a sweepstakes or a $4 coupon – and consumers would not reasonably have expected the connection between the reviewer and the brand, that connection must be clearly and conspicuously disclosed nearby and repeated as necessary to avoid consumer confusion.

When questions arise about the truthfulness and accuracy of product reviews, competitors can bring challenges through one of the NAD challenge filing options: Fast-Track SWIFT, Standard, or Complex. The NAD’s industry self-regulation option provides consistency of analysis and decision-making, in contrast to the federal courts, where there is a split among circuits regarding whether failure to disclose material connections in product reviews is actionable under the Lanham Act. 

Earlier this year, the Ninth Circuit held that Ariix, LLC, a dietary supplement manufacturer, stated a claim for false advertising under the Lanham Act when it alleged that product reviews did not disclose financial connections to a competitor, NutriSearch Corp.  

In contrast, the Second Circuit dismissed a case when Casper, Inc., a mattress company, sought relief under the Lanham Act for damages flowing from the lack of disclosure of a material connection between product reviewers and the defendant-advertiser. The court dismissed the claim, stating that “§ 43 of the Lanham Act does not impose an affirmative duty of disclosure.” 

The mission of independent advertising self-regulation is to support a fair marketplace. Working towards that mission, NAD receives challenges and helps determine whether consumers are misled by advertising in a variety of contexts, including when advertisers fail to disclose material connections or when product reviews are collected or displayed in a way that conveys a misleading message. With the constant evolution of the online marketplace, advertising self-regulation applies consistent standards of truth-in-advertising to the use of consumer reviews in advertising to help protect fair competition and consumers.