Provided by: Jennifer Kirschenbaum, Esq.
March 30, 2023
A product I’ve recommended to my patients for ages reached out and asked me to endorse them as an expert in an advertisement. Obviously I am flattered! Is there anything I should know before I agree?
Hi Dr. E, good question.
In addition to state licensing laws (which we'll ignore for this answer), the Federal Government has opined on a Federal Level by publishing under the Federal Trade Commission - Guides Concerning the Use of Endorsements and Testimonials in Advertising on this topic (16 CFR Part 255). Below is a summary of the rules most relevant to your proposed role as an expert endorser -
- 255.1(d) endorsers are liable for false or unsubstantiated statements this means that you must ensure that every statement you make is, to your knowledge, true and evidence based. If it is not, you can be liable for saying it
- 255.1(d) Example 3: An ad for an acne treatment features a dermatologist who claims that the product is “clinically proven” to work. Before giving the endorsement, she received a write-up of the clinical study in question, which indicates flaws in the design and conduct of the study that are so serious that they preclude any conclusions about the efficacy of the product. The dermatologist is subject to liability for the false statements she made in the advertisement. The advertiser is also liable for misrepresentations made through the endorsement.
- 255.3(a) endorser must have qualified expertise this is likely not an issue because of your educations, degrees, licenses, experience, etc.
- 255.3(b) endorser must conduct an examination or testing of the product at least as extensive as someone with the same degrees of expertise would normally need to conduct to support the conclusions presented do not endorse the product without conducting any research that someone else in your field would consider necessary to endorse the product similarly
The main takeaway here, is to ensure that what you are saying is true, to the best of your knowledge, and that you are thorough in your research and examination of the product from a medical, scientific and experience-based standpoint. To do this, you must be in control of the representations you are willing to make regarding these products. You cannot simply say what they ask you to say and stand behind that the way a paid actor would. Your endorsement is going to mean more to people because of your expertise, which imbues an obligation on you, as an endorser. These endorsements should not be taken lightly and we recommend only endorsing with prudence and supportable position. Make sure ay arrangement you are making is in writing and that writing is reviewed to limit your liability/exposure.
An endorsement by a licensed practitioner is not a safe play with simple disclaimers - you will have a lot more exposure than the actor playing a pharma endorser on TV.
That being said, not all opportunities are the devil and we are here to protect you and get you to "Yes". Involve us early so we can help shape the opportunity for your benefit.