Testimonials or "endorsements" by ordinary people, celebrities, experts, or organizations, when used in healthcare advertising, can help persuade consumers to purchase the product or service being promoted.
Although an endorsement may appear to insulate the advertiser from the statements offered, this is not necessarily the case. In addition to the benefits that advertisers can derive from testimonials or endorsements, there are potentially significant drawbacks.
Litigation Risk
For one thing, an ad containing an improper testimonial or endorsement can lead to an investigation by the Federal Trade Commission (FTC) or by state regulatorswhich may result in costly and time-consuming litigation. Competitors may be able to challenge advertisements that have testimonials or endorsements that do not meet applicable legal standards. And publicity about objections to these kinds of advertisements, based on legal grounds, may negate the benefits they yielded in the first placeor worse.
Claims that relate to advertising typically fall into two categories: claims brought by competitors and claims brought by consumers and/or regulators. Competitors can bring claims under federal and state statutes that are designed to protect against false and/or misleading statements in ads. Claims that are generally based on libel, slander, defamation, disparagement, and even tortious interference with contract rights also can be brought under "common law." Competitors often seek injunctive relief to prevent an ad from running or to require corrective advertising. Under federal law, a competitor also may be entitled to recoup lost profits and attorney's fees.