I. OVERVIEW OF THE COMMISSION’S REVIEW OF THE GUIDES The Commission began a review of the Guides pursuant to the agency’s ongoing regulatory review of all current rules and guides. In January 2007, the Commission published a Federal Register notice seeking comment on the overall costs, benefits, and regulatory and economic impact of the Guides. 72 FR 2214 (Jan. 18, 2007). The Commission also requested comment on consumer research it commissioned regarding the messages conveyed by consumer endorsements and on several other specific issues, the most significant of which was the use of so-called “disclaimers of typicality” accompanying testimonials that do not represent experiences that consumers can generally achieve with the advertised product or service. Specifically, the Commission asked about the potential effect on advertisers and consumers if the Guides required clear and conspicuous disclosure of the generally expected performance whenever the testimonial is not generally representative of what consumers can expect. Twenty- two comments were filed in response to this notice. In November 2008, the Commission published a Federal Register notice, 73 FR 72374 (Nov. 28, 2008), that discussed the comments it had received in 2007, proposed certain revisions to the Guides, and requested comment on those revisions. Seventeen comments were filed.1 1 Comments were submitted by the American Association of Advertising Agencies (“AAAA”), the American Advertising Federation (“AAF”), the Council for Responsible Nutrition (“CRN”), the Direct Marketing Association (“DMA”), the Direct Selling Association (“DSA”), the Electronic Retailing Association (“ERA”), the Interactive Advertising Bureau, Inc. (“IAB”), the Promotion Marketing Association, Inc. (“PMA”), the U.S. Chamber of Commerce (“C of C”), the Association of National Advertisers (“ANA”), the Public Relations Society of America (“PRSA”), Higher Power Marketing (“HPM”), the Natural Products Association (“NPA”), the National Association of Realtors (“NAR”), the Word of Mouth Marketing Association (“WOMMA”), BzzAgent, Inc. (“BzzAgent”), the Personal Care Products Council (“PCPC), Kelley Drye & Warren, LLP, Monyei-Hinson, and Heath-McLeod. In some cases, a comment was submitted by more than one party. Citations to these joint comments identify the individual commenters (e.g., AAAA/AAF). In addition, several commenters signed on to more (continued...) 2
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