Research Guides: Advertising Law Research Guide: FTC Guidance

Guidance from the FTC

The Federal Trade Commission and its staff routinely provide guidance concerning the broad general requirements and application of all federal antitrust and trade regulation laws which the Commission administers. However, in furnishing interpretive statements and evaluation legal issues the Commission generally will avoid giving specific advice respecting business operations or recommending adoption of any particular conductor method of compliance with the law. These standards should guide the informal expression of views by members of the staff in the course of public statements and responding to general correspondence and telephone calls. When the Commission deems it advantageous to provide more formal general advice, it may select from among several alternative means including industry guides, enforcement policy statements, interpretations of special statutes and rules, and detailed staff reports. The Commission also may provide comments and views concerning specific legal issues in formal advisory opinions and in informal staff opinion letters. Legislative authority for the commission to publish reports and provide industry guidance is found in FTCA § 6(f).

Select FTC Enforcement Policy Statements

An enforcement policy statement is any clearly defined statement by the Commission concerning its future enforcement plans, goals, and objectives with respect to a particular industry or practice. The statement usually describes either the circumstances in which the Commission intends to take corrective action or the means by which it will be pursued rather than whether or when it may have a legal right to do so. It may also provide an interpretative statement of a law or substantive rule. The policy is of general application to the members of a particular industry or of many unrelated industries. The principal function of an enforcement policy is to deter violations of law.

Enforcement policy statements are published in various forms. Many are published informally as news releases, other are published more formally as enforcement policy statements and interpretations concerning special statutes, mergers, etc. Some enforcement policy statements are also published in 16 C.F.R. Part 14; the appendix to the Advisory Opinion Digests; and randomly throughout the CCH Trade Regulation Reporter (e.g., the merger guidelines for various industries).

The FTC issues enforcement policy statements on a variety of consumer protection topics.

FTC Enforcement Policy Statement on U.S. Origin Claims FTC statement to provide guidance regarding its enforcement policy with respect to the use of "Made in USA" and other U.S. origin claims in advertising and labeling.
FTC Policy Statement on Deception According to the FTC's Deception Policy Statement, an ad is deceptive if it contains a statement - or omits information - that: Is likely to mislead consumers acting reasonably under the circumstances; and Is "material" - that is, important to a consumer's decision to buy or use the product.
FTC Policy Statement on Unfairness According to the Federal Trade Commission Act and the FTC's Unfairness Policy Statement, an ad or business practice is unfair if: it causes or is likely to cause substantial consumer injury which a consumer could not reasonably avoid; and it is not outweighed by the benefit to consumers.
FTC Statement of Policy Regarding Comparative Advertising Comparative advertising is legal as long as it is truthful.

Select FTC Guides

A guide is an administrative interpretation by the Commission of the laws it administers. It may have application to any matter of fact or law and it may relate to the practices of a particular industry (Guides for the Household Furniture Industry, 16 C.F.R. 250) or to practices common to many unrelated industries (Guides Against Bait Advertising, 16 C.F.R. 238). In the past certain of these statements concerning practices in a particular industry were promulgated and referred to as trade practice rules. Guides and trade practice rules are published in 16 C.F.R. 18 et seq.

Unlike a trade regulation rule (TRR), a guide does not have the force or effect of law and is not legally binding on the Commission or on the public in an enforcement action.Therefore, a case brought to enforce a guide, or which embodies the theory of a guide, must plead a violation of the underlying statute on which the guide is based, not a violation of the guide itself.

The advertising guides are found in Title 16 of the Code of Federal Regulations and cover many areas and industries.

Guide Concerning Use of the Word “Free” and Similar Representations See 16 CFR Part 251. The offer of "Free" merchandise or service is a promotional device frequently used to attract customers. When making "Free" or similar offers all of the terms and conditions upon which one can receive and retain the “Free” item should be set forth clearly and conspicuously at the outset of the offer so as to leave no reasonable probability that the terms of the offer might be misunderstood.
Guides Concerning the Use of Testimonials and Endorsements See 16 CFR Part 255. All endorsements must reflect the honest experience or opinion of the endorser. Endorsements may not contain representations that would be deceptive, or could not be substantiated, if the advertiser made them directly.
Guides for the Use of Environmental Marketing Claims ("Green Guides") See 77 Fed. Reg. 62122.

FTC Advisory Opinions & Staff Opinion Letters

FTC staff issue advisory opinions to help clarify FTC rules and decisions, often in response to requests from businesses and industry groups.

An advisory opinion is a formal, written statement of views or letter of advice. It discusses the application of one or more provisions of law to the detailed factual situation set forth as a proposed course of conduct by the requester or analyzes a proposed course of conduct in light of the requirements of a particular trade regulation rule, order to cease and desist, or affirmative order of the Commission.

A staff opinion letter is a written opinion signed by a member of the staff and given to a person or group in lieu of advice from the Commission. A staff opinion may be rendered in response to a request for an advisory opinion or to any other inquiry that raises a significant legal question when a formal advisory opinion or advice from the Commission is not deemed warranted. The staff opinion differs from an advisory opinion in that it is not submitted to the Commission for review and approval. It should state that it is not binding upon either the Commission or the staff with respect to the requester or any other party.