Legal Lessons from Nutrisystem’s Pinterest Testimonial Campaign

On July 12, 2012, the National Advertising Division of the Council of Better Business Bureaus (NAD) completed its review of Nutrisystem, Inc.’s Pinterest campaign entitled “Real consumers. Real success.” The NAD’s press release announced that Nutrisystem’s weight loss success profiles constituted consumer testimonials and should be in compliance with the FTC Endorsement and Testimonial Guidelines.

Nutrisystem highlights real consumer experiences on its “Real Customers. Real Success.” Pinterest board. Each photo shows an actual consumer with a caption highlighting his or her weight-loss success. For example, a caption reads“Christine B. Lost 46 lbs on Nutrisystem.” Of course, Nutrisystem’s Pinterest board works like all other boards and click-throughs go directly to the Nutrisystem website.

The NAD specifically noted that Pinterest is an advertising medium for companies and as such, it is subject to all the legal requirements for advertising, including compliance with the FTC E&T Guidelines. Nutrisystem concurred and asserted that it had “inadvertently omitted” the required disclosures. The weight loss company immediately added the following disclaimer next to each person’s story: “Results not typical. On Nutrisystem®, you can expect to lose at least 1-2 lbs per week. Individuals are remunerated. Weight lost on prior Nutrisystem® program.”

There are multiple lessons from this NAD investigation.

1. Pinterest and other social media sites are advertising media. All content needs legal clearance to ensure that it is not deceptive, that it is substantiated, and that it meets all required legal standards.

2.  Placement of disclosures matters. Nutrisystem did not just put the required disclosures on the bottom of its Pinterest page. Instead, it lists them over and over, next to each consumer’s testimonial. While it may seem repetitive, Nutrisystem is being careful to meet the FTC E&T Guidelines’ requirement that disclosure be in close proximity to each endorsement.

3. The FTC E&T Guidelines have multiple levels of disclosure. Nutrisystem’s disclosures addressed both the material connection between the consumer and the brand as well as typicality concerns. Brands must be diligent to ensure they have made all necessary disclosures.

4. Brands need internal clearance systems. Nutrisystem claimed that its initial failure to make the disclosures was inadvertent. The case highlights the need for internal clearance systems before initiating any kind of social media campaign to avoid investigations and minimize legal risk.

5. Advertising requires specialized legal clearance. The case highlights the need for specialized legal counsel who can spot the issues before the NAD or another regulator scrutinizes an advertiser’s campaigns.
For another discussion of the FTC E&T Guidelines on this blog, click here.