Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Marketers must hold signed and dated proof, including a contact address, for any testimonials they use. E-mail testimonials without signatures and from unverifiable addresses (such as hotmail) are unlikely to be permissible but the ASA seem inclined to accept e-mail testimonials if they are provable.
Unless they are genuine opinions taken from a published source, testimonials should be used only with the written permission of those giving them (Rules 3.45 and 3.48). The ASA has criticised the use of testimonials when marketers have not been able to prove they have the author's consent (Everwell Chinese Medicine Centre, 25 July 2007) and when a testimonial was wrongly attributed to a complainant whose image was used without her consent (Phyto Nature Source, 25 October 2006).
Marketers are urged to obtain written permission before implying any personal endorsement of the advertised product from a celebrity or other famous person. See ‘Privacy: Implied Endorsements’.
Rule 3.46 states that testimonials must relate to the product or service being advertised (Pharma Nord (UK) Ltd, 16 January 2008, and Home Shopping Selections, 12 December 2007, complaint 1). Marketers should not take a testimonial out of context or edit it in a way that misleads. Marketers using testimonials for companies that no longer trade should be careful not to misleadingly imply that they are for other companies (Envenio Ltd, 7 December 2005, and YooMedia Dating Ltd, 27 July 2005).
Marketers should not rely on testimonials as support for any direct or implied claims made in the marketing communication. Testimonials alone do not constitute substantiation and the opinions expressed in them must be supported, if necessary, with independent evidence of their accuracy (Zero Gravity Products, 2 April 2008, complaint 5). Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer (Rule 3.47). That means marketers may not use testimonials to circumvent the Code by making claims in a customer statement that they would not otherwise be permitted to make. For example, an advertiser would not be able to imply efficacy for a product that has not been proven to work (IntraMed Ltd, 21 May 2008, complaint 5)). And a claim such as “I was crippled with arthritis but this product worked wonders and melted my pain away” is unacceptable, because it refers to a serious condition for which medical attention should be sought (Pharma Nord (UK) Ltd, 16 January 2008).
“Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious…” (Rule 3.45). In the past, the ASA has accepted that fictitious testimonials that dramatise consumer opinion but not genuine testimonials from real people are likely to be acceptable as long as they are representative and it is clear that they are not genuine testimonials. But if a testimonial is likely to mislead or has been wrongly attributed, the ASA is almost certain to object (Phyto Nature Source, 25 October 2006).
Marketing communications must not feature a testimonial without permission; exceptions are normally made for accurate statements taken from a published source, quotations from a publication or references to a test, trial, professional endorsement, research facility or professional journal, which may be acceptable without express permission (Rule 3.48). In early 2008, the ASA upheld complaints that an ad implied the marketed product had been endorsed by the U.S. Government (National Fuelsaver Corp, 16 April 2008). The ad claimed “U.S. Consumer Protection has confirmed the fuel saving described in this advertisement … the U.S. government concluded: ‘Independent testing shows greater fuel savings with the Petrol Saver than the 22% claimed by the developer …’”.
The fact that reports or trials have received press coverage or are already in the public domain does not necessarily make it acceptable for marketers to refer to them without permission (Thames Water, 28 February 2001). But, if an endorsement is a genuine statement from a published source, marketers may use them without the permission of the publisher. Marketers should nevertheless ensure that any endorsements used are relevant and have not become obsolete (Ecos Paints, 18 April 2007).
Rule 3.49 states " Marketers must not refer in a marketing communication to advice received from CAP or imply endorsement by the ASA or CAP”. Marketers seeking to capitalise on an ASA adjudication either in their favour or against their competitors are well advised to steer clear of referring to the ASA decision, especially if it suggests endorsement by the ASA or CAP.
As a result of the Consumer Protection Regulations, the CAP Code was changed in June 2008. Marketers should be aware that Rule 3.50 states “Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation”. Rule 3.51 states “Marketing communications must not falsely claim that the marketer, or other entity referred to in the marketing communication, is a signatory to a code of conduct. They must not falsely claim that a code of conduct has an endorsement from a public or other body”.
Rule 12.18 of the Code states “Marketers must not use health professionals or celebrities to endorse medicines”. See ‘Medicines: Celebrities and Professionals’.
See ‘Official Endorsements’.
Last modified : 03 February 2011